R v Kannan (Ruling No 10) - [2020] VSC 91

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:	17, 18 & 19 February 2020
DATE OF JUDGMENT:	26 February 2020
CASE MAY BE CITED AS:	R v Kannan & Anor (Ruling No 10)
MEDIUM NEUTRAL CITATION:	[2020] VSC 91

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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 – Notice of an intention to adduce evidence of previous representations of a deceased witness – Includes representations made during committal – Unavailable witness – Defence claim unfair prejudice – Evidence in hearsay notice admitted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms T. McDonald SC with Ms S. Bruhn and Mr Y. Haradjadibrata	Commonwealth Director of Public Prosecutions
For Kumuthini Kannan	Dr G. Boas with Mr A. Imrie	Stary Norton Halphen
For Kandasamy Kannan	Mr J. Kelly SC with Mr A. Patton	Peter Lunt Lawyers

HIS HONOUR:

Introduction

The prosecution has given notice pursuant to s 67 of the Evidence Act 2008 (‘the Act’) of an intention to adduce evidence of previous representations and submit that the hearsay rule does not apply to the evidence, on the basis of s 65(2) and s 65(3) of the Act.

The person who made the previous representations was Mr N. Jawahar Krishnan (‘the representor’), who was the son-in-law of Mrs Rajalakshmi Natarajan (‘the complainant’).

The representor is unable to testify and give evidence in the trial as he is deceased. It is not in issue that he died on 22 September 2019 or disputed that he is not available to give evidence as set out in s 65(1) of the Act.

The evidence sought to be led

The prosecution have included a table in the Notice of Intention, which sets out particulars of the evidence sought to be led. A copy of the table is attached to this ruling.

In brief, the evidence includes:

(a) the contents of the affidavit sworn and affirmed by the representor on 13 April 2017, which was admitted as the substance of his evidence in chief at the joint committal hearing on 13 December 2017;

(b) the representor’s answers to questions during his oral evidence at the committal hearing on 13 December 2017 and 7 February 2017, including his cross examination by defence counsel;

(c) the contents of a facsimile letter received by the Australian High Commission in New Delhi, India on 8 August 2015, which contained the following representations:

(i) The complainant lived with the representor for more than 15 years at No.67/70, Thoppu Street, Thiiuvizhandur, Mayiladuthurai-609001, Nagai Dt.

(ii) Kandasamay Kannan, an acquaintance of the representor who lived in Australia, asked him for his mother-in-law’s assistance following the birth of his first child with the first accused Kumithini Kannan.

(iii) As a result, in 2004, the…

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.

Continue reading R v Kannan (Ruling No 10)

Details

AGLC: R v Kannan (Ruling No 10) [2020] VSC 91
Case: [2020] VSC 91
Decision Date: 26 February 2020

CaseChat Overview and Summary

The court heard an appeal against conviction by the accused, R, for the offences of intentionally possessing a slave and intentionally exercising over a slave any of the powers attaching to the right of ownership, namely use. The trial was conducted in the County Court of Victoria. The accused was found guilty by a jury on both counts and sentenced to a total of 12 years imprisonment, with a non-parole period of eight years. The case was brought to the Court of Appeal, which was tasked with considering the admissibility of hearsay evidence in the form of statements made by a deceased witness during the committal proceedings and at other times.

The central issue before the Court of Appeal was whether the admission of the deceased witness's hearsay evidence was unfair to the accused and thus constituted a miscarriage of justice. The deceased witness had made representations to the police about the accused's involvement in slavery offences prior to their death. The defence argued that the deceased witness was unavailable and that the admission of their hearsay evidence was unfair and prejudicial to the accused's right to a fair trial. The prosecution submitted that the deceased witness was unavailable within the meaning of the statutory exceptions to the hearsay rule and that the evidence was admissible.

The Court of Appeal held that the deceased witness was indeed unavailable as they had died prior to the trial and could not be compelled to give evidence. The court found that the deceased witness's hearsay evidence was admissible under the statutory exceptions to the hearsay rule. The court concluded that the admission of the hearsay evidence did not result in a miscarriage of justice, as the evidence was properly considered by the jury in light of all the other evidence presented at the trial. The appeal against conviction was dismissed.

The Court of Appeal did not alter the sentence imposed by the County Court. The accused's convictions for the offences of intentionally possessing a slave and intentionally exercising over a slave any of the powers attaching to the right of ownership, namely use, were upheld. The sentence of 12 years imprisonment, with a non-parole period of eight years, remained in place.

Orders