R v Kannan & Anor (Ruling No 1)
[2019] VSC 461
•16 July 2019
| 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
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 to provide domestic services for the two accused, who are married and live together with their three children. This was allegedly arranged between Kumuthini Kannan (Mrs Kannan) and the complainant’s son-in-law, Jawahar Krishnan. The complainant’s travel was allegedly organised and paid for by Mrs Kannan. A similar domestic services arrangement had occurred twice previously between September 2004 and September 2005, with the complainant residing with both accused on each occasion. The prosecution allege that in respect of the 2007 arrangement, Kandasamy Kannan (Mr Kannan) sponsored the complainant.
Upon arrival in Australia in July 2007, the complainant allegedly began domestic duties at the home of the accused, located at 3 Gillian Road, Mount Waverley (‘the home of both accused’). This included household chores and caring for their three children, then aged between three and six years. On 5 August 2007, the complainant’s tourist visa expired and she became an unlawful non-citizen.
In relation to the charges, the prosecution rely on several alleged characteristics of the complainant’s circumstances to infer she was in a condition of slavery, including:
(a) both accused exercised control over the movement of the complainant which extended beyond exploitative employment, and included taking and hiding her passport, allowing her visa to lapse, removing identification documents from her possession, prohibiting her leaving the house on her own, locking her inside the premises when the family travelled overseas, and controlling all aspects of her life;
(b) the complainant was deprived of the means by which she could return to her country of origin, the opportunity to leave the family premises, money, and of family or friends in Australia;
(c) both accused exercised control over her physical wellbeing, having exclusive responsibility for providing the complainant with food and access to medical and dental health services;
(d) the complainant was provided with extremely inadequate remuneration for the services she was required to perform for each accused;
(e) the complainant was required to work when unwell and given limited rest breaks;
(f) the complainant was required to work lengthy hours performing a multitude of services, including cooking, cleaning and caring for the children;
(g) the complainant was subject to cruel treatment and abuse, including physical abuse and the threat of physical abuse;
(h) both accused restricted the complainant’s contact with her family overseas to occasional, monitored telephone contact;
(i) requests by the complainant’s family to return her to India in 2014 and 2015 were refused;
(j) the complainant was isolated from her family or friends, and from becoming familiar with an alien society;
(k) the accused told the complainant who she could speak to, when she could speak to others, and what she could say; and
(l) the accused ensured the complainant lived in fear of punishment if she disobeyed instructions.
The Crown alleges that by 30 July 2015, the complainant had become seriously ill while living at the home of both accused. On that day, Mrs Kannan made an emergency call for an ambulance, allegedly telling the operator that an Indian woman, who was about 58 years old and had been staying with their family on and off for the past seven years, had collapsed on the bathroom floor. Mrs Kannan allegedly stated the woman had been there for about three hours and was lying in her own urine. Further, it is alleged Mrs Kannan told the operator she only knew the woman’s first name, and that she had left the house a number of times during her stay for unspecified amounts of time. Mrs Kannan allegedly stated this woman did not have any travel or identification documents with her.
When ambulance officers arrived at the home of both accused, Mrs Kannan allegedly told them the complainant’s name was Rajaalaksh, and that she did not have a Medicare card or any identification documents, as she was from overseas. Her date of birth was recorded as 1 January 1957.
The complainant was then transported to Box Hill Hospital and following admission, Mrs Kannan allegedly falsely told staff the complainant’s name was Rangan Rajalakshi. She was admitted to the hospital under the name, Rajalakshi Rangan.
At the time of admission, the complainant was gravely ill. She was placed in intensive care, suffering from extreme hypothermia, altered consciousness, emaciation and severe urinary sepsis. Medical staff were of the opinion that the sepsis would have been fatal if untreated. The complainant also had crusted lesions on her hands and feet, and multiple pressure ulcers on her left side. Subsequent testing revealed she had untreated Type 2 diabetes and was malnourished. On 2 August 2015, the complainant was moved to a general ward, and on 19 October 2015, she was finally discharged.
It is alleged that between 11 August and 24 September 2015, the complainant consistently told social workers that:
(a) she had arrived in Australia three months before being admitted to hospital;
(b) she had come to Australia to spend time with and help care for the accused’s children;
(c) she felt safe living with the accused;
(d) she received no income for her services, had her own room and was provided with what she needed;
(e) there was food for her in the house, but she mainly drank tea;
(f) she wanted to be discharged back to the accused persons’ house so her return to India could be arranged; and
(g) she had no way to contact her family in India and had no identification documents, visa or passport.
By 13 August 2015, Australian authorities had received two complaints from the complainant’s son-in-law, Jawahar Krishnan. In particular, on that date, the Indian Embassy in Melbourne received a letter from Mr Krishnan on behalf of the complainant’s daughter, stating the complainant was being kept in bonded labour by people living at 3 Gillian Road, Mount Waverley, was being harassed and kept as a slave. The letter stated that efforts to contact Mrs Kannan had been a waste of time and the complainant’s family were concerned about her life and health, requesting authorities attempt to save her and return her to India.
On 24 August 2015, at the request of the Indian Consulate, Sergeant Carl Keenan, an officer of Victoria Police, attended the home of both accused and spoke with them. He returned on 28 August 2015, and had a further conversation with them. On both dates, the whereabouts of the complainant were unknown to Victoria Police and Sergeant Keenan did not know that she was at Box Hill Hospital.
On 11 September 2015, Sergeant Keenan received a telephone call from Peter Lunt, a lawyer acting on behalf of both accused. Mr Lunt informed him the accused apologised for not being truthful regarding the complainant’s whereabouts, and advised she was admitted to Box Hill Hospital on 30 July 2015.
On 15 September 2015, Sergeant Keenan spoke to both accused on the phone. Both confirmed the complainant had been taken to the hospital by ambulance on 30 July 2015, and could not explain why Box Hill Hospital had no record of her being there. Sergeant Keenan then contacted the hospital and was able to identify that the complainant had been admitted as Rangan Rajalakshi. The correct name of the complainant was established at a later time.
I note this is the first of several rulings that will likely be made in this proceeding, and some of the above allegations may not form part of the eventual evidence put to the jury.
The content of the VAREs
During the hearing of this application, I was shown extracts from the first, second, third and sixth VAREs. The first two extracts showed the complainant lying in a hospital bed and wearing a hospital gown while being interviewed. By comparison, the third and sixth VAREs depicted the complainant sitting in a lounge chair and dressed in street clothes. It is notable that the sixth VARE took place on 13 June 2016, six to seven months after the third VARE which occurred on 22 October 2015. It is of further note that the sixth VARE appeared to demonstrate that the complainant’s physical condition had improved since the third interview. An interpreter was utilised in each of the VAREs to facilitate the interview process.
It is also of some relevance that during the extracts of the VAREs observed, the complainant can be seen to gesture with her hands on occasion. Her facial expressions can also be seen when she answers some questions.
The applicable law
The admissibility of VAREs in the current circumstances is governed by provisions of the Crimes Act 1914 (Cth) (‘the Act’). Part IAD of the Act contains various rules for the protection of vulnerable persons in criminal proceedings.
In relation to the relevance of this Part of the Act to these proceedings, s 15Y includes the following:
(2) This Part contains special rules for adult complainants involved in proceedings to which this subsection applies. This subsection applies to proceedings for any of the following offences:
(a)an offence against Division 270 of the Criminal Code (slavery and slavery-like offences);
Section 15YAA of the Act defines vulnerable adult complainants as follows:
(1)A vulnerable adult complainant, in relation to a vulnerable adult proceeding, is an adult who is, or is alleged to be, a victim of an offence, of a kind referred to in subsection 15Y(2), to which the proceeding relates.
(2)However, the adult is not a vulnerable adult complainant if the adult informs the court that he or she does not wish to be treated as such a complainant.
Section 15YM of the Act provides for the use of video recordings:
(1)A video recording of an interview of a person to whom subsection (1A) applies in a proceeding may be admitted as evidence in chief if:
(a)a constable, or a person of a kind specified in the regulations, conducted the interview; and
(b) the court gives leave.
(1A) This subsection applies to the following persons:
(a) for a child proceeding—a child witness;
(b)for a vulnerable adult proceeding—a vulnerable adult complainant;
(c) …
(2)The court must not give leave under subsection (1) if satisfied that it is not in the interest of justice for the person’s evidence in chief to be given by a video recording.
(3) An application for leave under this section:
(a) must be in writing; and
(b)must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.
(4)The person must be available for cross‑examination and re‑examination if he or she gives evidence in chief by a video recording.
The prosecution’s contentions
On 7 June 2019, the prosecution filed an application seeking leave to adduce the six VAREs of the complainant as evidence in chief, pursuant to s 15YM of the Act. The prosecution submits that as the present charges are captured by s 15Y(2)(a) of the Act as above, the complainant is considered a vulnerable adult complainant in a vulnerable adult proceeding. As a result, the prosecution submits there is a prima facie requirement for her evidence to be played in the proposed form, unless it is not in the interests of justice to do so, pursuant to s 15YM(2) of the Act. The prosecution argues there is nothing that demonstrates it is not in the interests of justice for the VAREs to be played in their full form.
In determining whether to grant leave, the prosecution argues I am entitled to take into account the physical and mental condition of the complainant. It is submitted she remains the subject of some physical disabilities, has difficulties walking and has a catheter and urine bag. It is further submitted that she is a women in her sixties who does not speak English, has no family support, and is in an alien cultural environment. The prosecution submits that given the nature of the serious allegations, the giving of evidence in a courtroom would cause her stress and potential embarrassment and discomfort in having to face the accused.
The prosecution also notes that at the committal proceeding, the complainant gave evidence by way of video link over two days, with the transcripts of the VAREs being the way in which her evidence was led.
With respect to the joint defence application before the Court, the prosecution submits the evidence to be led through the six VAREs is of high probative value. In relation to the video component of the first two VAREs, it is submitted that as the finders of fact, the jury should be able to see the complainant give the whole of her evidence in addition to the audio. It is argued this will enable the jury to properly carry out an assessment of the complainant’s reliability and credibility, and to evaluate the weight to be given to her evidence. It is argued that it is desirable for that assessment to involve the jury seeing the demeanor, facial expressions and gestures of the complainant as she answered and responded to particular questions.
The prosecution submits that no level of prejudice exists such as to outweigh the probative value of the evidence sought to be led in playing the video of the first two VAREs.
The joint defence contentions
The submissions regarding the defence application to exclude the video of the first two VAREs were primarily made by counsel for Mr Kannan. Following this, counsel for Mrs Kannan stated that these submissions were adopted. Therefore, the following discussion refers to argument as joint defence submissions on behalf of both accused.
The defence do not take issue with the identification of the complainant as a vulnerable adult, and do not seek to exclude the entire body of VAREs. The joint application objects to the video aspect of the first two of the six VAREs. Therefore, they note that should their application be granted, the prosecution will still have the benefit of the audio component of first two VAREs, in addition to the entirety of the remaining four VAREs.
The defence argument for exclusion of the video aspect of the first two VAREs is based on the complainant being situated in a hospital bed while being interviewed. The defence note that at the time these VAREs were conducted, there was no medical necessity for the complainant to be interviewed in a hospital bed. It is submitted that, having been admitted to hospital on 30 July 2015, she was initially treated in the intensive care unit, but discharged to the general ward within few days. The complainant was discharged from hospital on 19 October 2015, and the defence note the reason that this did not occur much earlier was because there was nowhere for her to be placed. It is argued that the evidence demonstrates that she could have been treated as an outpatient much earlier if accommodation had been available. In support of this, the defence refer to extracts of evidence from the committal that confirmed the complainant’s medical condition had stabilised within a few days of arrival at Box Hill Hospital.
Given this situation, it is submitted that it is unclear why the AFP agent chose to conduct the first two VAREs with the complainant in a hospital bed. The defence argue the police were conscious that an interview in those circumstances could well be regarded as prejudicial, but chose to proceed nonetheless. It is submitted that as there was no medical reason for the complainant to be in a hospital bed on the dates the first two VAREs were conducted, namely 8 and 13 October 2015, the interviews should have taken place in a more neutral location that would not have involved any risk of prejudice. The defence argue this would have been easy to do, even by placing the complainant in a chair in the corner of her room in the hospital.
I pause to note that no explanation was forthcoming from the prosecution as to why the complainant was interviewed in the bed, and there is no evidence before me which explains whether the interviewing police turned their minds to the possibility of prejudice arising from the interviews being conducted in the way they were.
The defence argue it is not in the interests of justice for the video aspect of these VAREs to be placed before the jury in circumstances where the complainant is shown in a hospital bed. It is argued that this is unfairly prejudicial as the images suggest she was bedridden, when in fact, there was no need for her to be in a bed. It is submitted this danger of unfair prejudice outweighs the probative value of the evidence.
Moreover, the defence submit that in any event, the circumstance of the complainant being in a hospital bed had no nexus or connection to her alleged treatment by both accused up to the point of her admission to hospital on 30 July 2015. It is submitted that there is an appreciable risk that if the first two VAREs are played in full, the jury will conclude the complainant was in a hospital bed at that time because of something the accused had done to her. The defence argue the particular location of her interview risked conveying an appearance of urgency to the jury, consistent with a serious medical condition, when this was not the case at all. In essence, it is argued that any urgency had well passed by the time she was interviewed and there was no reason why she could not have been placed in a neutral location such that there was no risk of prejudice occurring. The defence further submit that a jury seeing the complainant in a hospital bed is likely to create an untoward atmosphere of sympathy towards her. Ultimately it is submitted that this vision would result in unfair prejudice that would outweigh the probative value of the evidence.
The defence further submit the risk of unfair prejudice cannot be cured by judicial directions, as this would simply make the situation worse. It is argued that directions would draw attention to the fact that the complainant was sitting in a bed, and the prejudicial nature of the images.
Further, in response to the prosecution’s arguments as to the importance of the jury observing the complainant’s gestures and expressions, the defence submit this is not necessary to the prosecution case. It is submitted that any hand movements and gestures made by the complainant in the first two VAREs do not provide critical information to the jury, beyond that which is captured by the audio recordings.
Discussion and conclusions
Leave sought for the VAREs to be adduced
I am satisfied that the prosecution has complied with the procedural requirements of the legislative regime by providing notice seeking the use of the six VAREs in the manner proposed. I find that pursuant to s 15YM(1) of the Act the six VARES are admissible as evidence in chief on the basis that an appropriate person conducted the interviews. I also find that the complainant is a vulnerable adult complainant as described in s 15YAA of the Act. Further, I have not been informed that the complainant does not wish to be treated as a vulnerable adult complainant, as provided for in s 15YAA(2) of the Act.
I am further satisfied the phrase ‘video recording of an interview’, as contained in s 15YM(1) of the Act, envisages the admission into evidence of video and audio content recorded simultaneously. Each of the six VARES is an example of a video recording of an interview.
Therefore, I give leave for the evidence to be admitted pursuant to the same section of the Act. I am not satisfied pursuant to s 15YM(2) of the Act that it is not in the interests of justice to do so. In making the decision to grant leave, I have taken into account parties’ submissions, as required by s 15YM(3)(b) of the Act. This has included consideration of the defence argument that it is not in the interests of justice for the video aspect of the first two VAREs to be placed before the jury, and the argument that the probative value of the evidence is outweighed by unfair prejudice to the accused, pursuant to s 137 of the Evidence Act 2008 (Vic). I have also taken into account, and accept, the submission for the prosecution that in determining whether to grant leave, I am entitled to take into account the physical and mental condition of the complainant.
Furthermore, I am satisfied that the complainant is capable of being subjected to cross-examination, as provided for in s 15YM(4) of the Act.
Defence application to exclude the video component of the first two VAREs
The ability to order alteration of the VAREs
In my opinion the starting point in deciding the defence application to excise the video aspects of the two VAREs under consideration requires attention to the legislative regime. The clear intent and purpose of the legislation is to permit the deployment of the VARE procedure to obtain evidence from a vulnerable adult in such a case as the present, and for that evidence to become their evidence in chief.
Further, the purpose of the legislation as enacted by Parliament is directed towards facilitating evidence from a vulnerable adult who is a complainant, as well as protecting vulnerable persons.[1]
[1]See Crimes Act 1914 (Cth) pt IAD.
Section 15YM of the Act is silent as to whether a court may order the alteration of the video recording of an interview in the way applied for by the accused. It may be arguable that the description ‘video recording of an interview’ as included in s 15YM of the Act, describes a united package of evidence, not amenable to disaggregation. On the other hand, s 136 of the Evidence Act 2008 (Vic) provides a court with a general discretion to limit the use of evidence if there is a danger that it might be unfairly prejudicial. In my opinion, s 137 of the Evidence Act 2008 ( Vic) is capable of operating in a similar manner.
In these circumstances, despite the Act providing for the admissibility of the unified form of the VAREs, I am of the opinion that the power exists to order they be altered by removing of the video aspect from the jury’s consideration. This is consistent with the ability of a judicial officer to order removal of any potentially prejudicial evidence from being placed before a jury in a criminal trial. The same may be said of the ability to remove inadmissible or irrelevant material. In my opinion, the legislative regime enacted in Part IAD of the Act does not limit this judicial discretion and the operation of ss 136 and 137 of the Evidence Act 2008 (Vic).
Application pursuant to s 137 of the Evidence Act 2008 (Vic)
This defence application is brought pursuant to s 137 of the Evidence Act 2008 (Vic) which provides the court must refuse to admit evidence adduced by a prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. I have also considered any possible operation of ss 135 and 136 of the Evidence Act 2008 (Cth).
In resolving the issue before me it is important to keep in mind the combined nature of the evidence obtained when the VARE procedure is used. In my opinion the audio and video components form a unified body of evidence. Parliament mandated a scheme providing for the evidence in chief of a vulnerable complainant to be adduced according to a specified procedure. The scheme provides a clear mandate for the evidence in chief of such a witness to be assessed by a jury in its unified form. It is highly desirable that a jury should see and hear the product of the VAREs, as recorded pursuant to the mandated procedure. Given the purpose of the scheme directed towards the protection of vulnerable adult complainants, any separation of these components requires careful consideration. However, that is not to say that such separation should not occur in appropriate circumstances where the risk of prejudice outweighs probative value, or where there may be occasions of inadmissible or irrelevant material occurring.
The assessment by a jury of the credibility and reliability of a witness involves not only hearing what they say, but also observing how the witness gives that evidence, and sometimes how they demonstrate or point to locations on their own body. In the present case, the credibility and reliability of the complainant will be squarely in issue, and there will be vital assessments for the jury to make in this regard.
Furthermore, I will give the jury standard directions regarding the assessment of witnesses, which will include the dismissal of feelings of sympathy or prejudice, and the importance of not jumping to conclusions as to how a witness gives their evidence. The jury will also be told that there are too many variables to make the manner in which a witness gives evidence the only or the most important factor in their assessment of that person. This direction encompasses the notion that how a witness gives their evidence is clearly relevant, but not the most important factor in making the necessary assessment.
In my opinion, the probative value of the evidence given by the complainant is high. Having observed relevant extracts of the VAREs, I am of the opinion that the images of the complainant and the atmosphere presented in the video components of the first two VAREs, are not such as to create a level or risk of prejudice that is unfair.
Additionally, the prosecution case will involve evidence of the complainant’s medical condition on arrival at the hospital and over the period that followed. The prosecution alleges that her grave condition upon admission was materially, albeit not entirely, contributed to by neglect and abuse at the hands of the two accused over an extended period. Her medical condition before and after admission will be led as part of the matrix of facts and circumstances bearing relevance to the qualities or characteristics of the complainant’s circumstances from which it is to be inferred that she had been in a condition of slavery. Accordingly, the jury will have a range of evidence as to her medical state.
Any risk that the jury might conclude that when the complainant was interviewed, she was still required to be in hospital and was suffering an ongoing illness caused by the accused, can be easily answered by Dr Margaret Bird, a registered medical practitioner employed at Box Hill Hospital. Dr Bird’s evidence at committal confirmed the complainant’s medical condition at the time of the first two VAREs was such that she did not need to be interviewed in bed. Dr Bird gave evidence that the complainant was in hospital because there was nowhere else for her to go at that time. This evidence does not appear controversial between the parties and can easily be led by the prosecution. I am confident the jury can apply themselves diligently and in a fair and balanced way when assessing the evidence of the complainant. There is no reason to conclude that seeing the complainant interviewed in the bed will create such a degree of sympathy or prejudice so as to unfairly deflect the jury from carrying out its task in an unbiased and intellectual manner.
Ultimately, given these factors, it is my opinion that the high probative value of the video aspects of the first two VAREs outweighs the small risk of prejudice to both accused.
Conclusion
As above, I grant leave for the prosecution to adduce the six VAREs as evidence in chief of the complainant.
Additionally, for the reasons outlined, I refuse the defence application to limit the evidence to be placed before the jury by deleting the video component of the VAREs taken on 8 and 13 October 2015.
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