R v Kannan (Ruling No 10)
[2020] VSC 91
•26 February 2020
| 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: | 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 complainant applied for a visitor-visa through the Australian High Commission in New Delhi.
(iv) After six months, the complainant returned to live with the representor. Kandasamy Kannan once again asked him to send her back to Australia. The complainant is now still in Australia with Kandasamy Kannan.
(v) In 2015, the representor inquired about the health of the complainant in an email to Kumuthini Kannan, who replied with obscene words.
(vi) The representor repeatedly contacted both accused without any success.
(vii) The representor wanted to know about the health of the complainant and asked for her return to India. Over the telephone, both accused demanded money for the complainant’s return.
The facsimile sought help from the Australian High Commission and requested the ‘matter’ raised be the subject of inquiry. The facsimile was received by Benjamin Nicholls, Principal Migration Officer, Department of Immigration and Border Patrol at the Australian High Commission, New Delhi, India.
(d) a telephone conversation on 24 September 2015, during which the representor was asked questions by Samanthi Fernandez and Shivanthi Siva, both from Department of Immigration and Border Protection, with the assistance of Leslie Kuddithamby, a Tamil translator. The conversation included the following statements by the representor which are sought to be led in evidence:
(viii) His wife was frequently in contact with the complainant and, on the last occasion, the complainant was significantly unwell and unable to articulate words which caused them to be concerned. When the representor contacted Kumuthini Kannan, he was verbally abused.
(ix)The family requested the return of the complainant and Kumuthini Kannan responded that they would need to pay for the aeroplane ticket.
(x) The initial agreement had been for the complainant to assist the Kannans for five years and then return to India. After the agreed period, every request for her return was met with verbal abuse.
(xi)When asked about the nature of the agreement between the family and Kumuthini, the representor said he did not care about the money but wished for the complainant to be returned.
(e) a further telephone conversation in the Tamil language on 24 September 2015, between the complainant, Samanthi Fernandez, Shivanthi Siva, and translated by Leslie Kuddithamby in which the representor told the complainant:
(xii) there was a financial agreement for her services where 8000 rupees was to be paid per month, for a period of 8 years;
(xiii) the only payments received were in the amounts of 30,000, 15,000 and 10,000 rupees;
(xiv) when he asked Kumuthini Kannan about the money, the representor was met with verbal abuse; and
(xv) The representor declared he only wanted his mother-in-law home and was no longer concerned about the money.
(f) an email to Benjamin Nicholls from the representor dated 29 September 2015, in which he identifies himself and attaches a photo of the complainant;
(g) an email to Benjamin Nicholls from the representor dated 29 September 2015, in which he provides telephone numbers and email addresses for Kumthini Kannan and notes that both Kannans do not pick up phone calls. He represented that the Kannans contact him from unknown numbers, private numbers and through internet calling. The representor also forwarded an email chain between himself and Luke Mahoney, Australian Federal Police dated 28 September 2015, in which Mrs Kannan’s email address was provided.
(h) an email to Benjamin Nicholls dated 29 September 2015, in which the representor forwarded an email chain concerning the complainant. This comprised of an email from the representor to Kumuthini Kannan dated 11 May 2015 and her reply stating, “..ck you” on 13 May 2015; and
(i) another email to Benjamin Nicholls dated 29 September 2015, which forwarded another email chain concerning the complainant. This comprised of an email from the representor to Kumuthini Kannan dated 11 May 2015 and her reply on 13 May 2015 which read in large letters, “Ask her to go fuck herself”.
The relevant legislation
Section 65 Exception—criminal proceedings if maker not available
(1)This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a)was made under a duty to make that representation or to make representations of that kind; or
(b)was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c)was made in circumstances that make it highly probable that the representation is reliable; or
(d) was—
(i)against the interests of the person who made it at the time it was made; and
(ii)made in circumstances that make it likely that the representation is reliable.
(3)The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied—
(a)cross-examined the person who made the representation about it; or
(b)had a reasonable opportunity to cross examine the person who made
…
(6)Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by—
(a)the person to whom, or the court or other body to which, the representation was made; or
(b)if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or
(c)the person or body responsible for producing the transcript or recording.
(7)Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends—
(a) to damage the person’s reputation; or
(b) to show that the person has committed an offence for which the person has not been convicted; or
(c) to show that the person is liable in an action for damages.
…
Section 67 Notice to be given
(1)Sections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.
(2)Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.
(3) The notice must state—
(a)the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and
(b) if section 64(2) is such a provision—the grounds, specified in that provision, on which the party intends to rely.
(4)Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice.
(5) The direction—
(a) is subject to such conditions (if any) as the court thinks fit; and
(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.
The prosecution submissions
The prosecution makes submissions with respect to each area of evidence as follows:
Affidavit and committal evidence
The prosecution submits that the affidavit and committal evidence of the representor are admissible pursuant to s 65(3)(a) of the Act. It argues that the representor was cross-examined by counsel for each of the accused and an authenticated transcript of the evidence has been served in accordance with s 65(6) of the Act. It proposes that selected relevant parts of the transcript will be read the jury and tendered in hard-copy. As such, the prosecution submits that the evidence should not be excluded on discretionary grounds.
In relation to cross-examination, the legislation requires that the defendant in a criminal proceeding must either have cross-examined the person who made the previous representation or had a reasonable opportunity to do so.[1] The prosecution submits that both accused had a reasonable opportunity to cross-examine the representor at the committal and did in fact cross-examine the representor, with counsel for Mrs Kannan conducting what the prosecution describes as a ‘wide-ranging’ cross-examination. Accordingly, the prosecution submits that the relevant statutory requirements have been met.
[1]Evidence Act 1995 (Cth) s 65.
Further, the prosecution points to the fact that cross-examination took place on topics contained in the evidence on the hand-up brief at the time. It notes that, since that time, the evidence which would have been given to the jury in evidence in chief has not changed.
Having submitted that at least one of two conditions has been satisfied for admissibility, the three step analysis contained in s 137 of the Act must be conducted, as set out in Bray v The Queen.[2]Firstly, there must be an assessment of the probative value of the evidence, followed by an assessment of the danger of unfair prejudice. Lastly, a weighing or balancing assessment must be conducted.
[2] [2014] VSCA 276.
The fact that a defendant chose not to avail himself or herself of the opportunity to cross-examine the maker of a representation cannot, by itself, mean that the evidence must be excluded. Such a principle would subvert the policy of the Act, as manifested in the statutory exceptions to the hearsay rule.[3]
[3]Ibid at [70].
The prosecutor then addressed the telephone conversations of 24 September 2015 and re-affirmed that the representations can be concluded to have been reliable, and set out the reasons why this is so.
The telephone conversations of 24 September 2015
The conversation between Fernandez and Siva
The prosecution submits that each of the previous representations made to Fernandez and Siva occurred in circumstances making it highly probable that the representations are reliable. Accordingly, the prosecution submitted the representations are admissible under s 65(2)(c) of the Act. In its written outline of argument, the prosecution set out those matters going to the reliability of the representation as including the circumstances in which the two officers spoke to the representor, and the content of the conversation being similar to and elaborating on the content of a facsimile letter sent by the representor to the Australian High Commission in India on 8 August 2015. Further, it is submitted that the contact between the representor and the two officers had not been prearranged, and the representor was unaware of the complainant’s admission to hospital on 30 July 2015. Further, the representations were consistent with the affidavits sworn by the representor on 13 April 2007, and his evidence at the committal hearing.
The conversation between the representor and the complainant
The prosecution submits that the representations made by the representor to the complainant concerning the financial arrangements between the representor and accused to bring the complainant to Australia, during which he requested the return of the complainant to India, is admissible pursuant to s 65(2)(c) and (d) of the Act.
The prosecution submits that the representations were made against the interests of the representor because he simultaneously withdrew any claim he may have had against the accused for allowing his mother-in-law to provide domestic services to the accused in Australia, such that he imposed a financial burden upon himself to care for her in her current poor health. Further, it is submitted that the representations were made in circumstances making it likely that they are reliable. In this regard, the prosecution submits that this was the first occasion the representor had spoken to the complainant since her admission to hospital, and that previous representations made in letters and emails, including the facsimile letter to the High Commission in New Delhi, only inquired as to the complainant’s health and welfare and sought her return to India.
Further, the representations were made before the representor made any allegations that the accused had sought to have him withdraw his complaints in October 2015. They were also consistent with his denials in cross examination at the committal that he did not make these complaints to obtain money from the accused. Further, the representation was made to the complainant informing her that, apart from certain sums of money, none of the agreed payments of 8000 rupees per month had been paid.
The emails to Nicholls of 29 August 2015
The prosecution submits that each of the representations contained in the three emails of 29 September 2015 were made in circumstances that make it highly probable that the representations were reliable, and are therefore admissible pursuant to s 65(2)(c) of the Act. The prosecution submits that the reliability of the representations is established as the emails were provided to support and elaborate on general representations made in the facsimile letter to the Australian High Commission dated 8 August 2015. Further, some of these emails included email chains to the Australian Federal Police, attaching email communications with the accused, including their contact phone numbers and email addresses, which had been used to contact the representor. Further, it is submitted that the contents of the emails are consistent with the representor’s affidavit sworn on 13 April 2017 and his evidence in the committal proceedings.
In respect of all of the matters sought to be tendered through the ‘unavailability provisions’, the prosecution submits there is no reason to not follow the policy behind such provisions, proposing that the present situation is exactly what is contemplated by the Act.
The defence submissions
Submissions for Mrs Kannan
In written submissions, counsel for Mrs Kannan noted that, save for one passage later identified during oral submissions, the admissibility of the respondent’s letter dated 8 August 2015 to the Australian High Commissioner and his affidavit sworn on 13 April 2017, upon which his evidence in chief at committal was based, were not the subject of objection.
In oral submissions, and by referring to a document entitled Parts of Krishnan Committal Evidence to which Objection is Taken dated 17 February 2020, defence counsel indicated there would no longer be objections against the evidence sought to be adduced by the prosecution pursuant to s 65(2) of the Act. However, objection was noted to the following:
(a) seven passages in the evidence given by the representor at the committal hearing; and
(b) one passage of the representor’s affidavit dated 13 April 2017.
Extracts of committal transcript which remain the subject of objection were identified in a further document entitled RESPONSE TO KRISHNAN XXN ISSUE RAISED BY MRS KANNAN, dated 18 February 2020.
Additionally, both accused object to the admissibility of most of paragraph 6 of the affidavit of the representor dated 13 April 2017.
The above noted, counsel for Mrs Kannan accepts that the above evidence is prima facie admissible under s 65(3) of the Act. However, it is submitted that the evidence should nonetheless be excluded on the basis that its probative value is outweighed by the danger of unfair prejudice pursuant to s 137 of the Act. It is submitted that, although the challenged evidence may be technically admissible, its admission into evidence is not inevitable.
In relation to the representor’s committal evidence, counsel for Mrs Kannan refers to R v Lynch & Watson[4] and Luna v The Queen[5] as examples of cases where, despite the existence of an admissibility provision, representations made from a committal proceeding were excluded. Defence counsel referenced the observation of the Court in Luna that evidence of this kind is capable of offending s 137 of the Act, and argued that this was a risk in the present case.
[4][1978] Tas SR 190.
[5][2016] VSCA 10.
Counsel for Mrs Kannan referred to the following factors in submissions that the probative value of the committal evidence is outweighed by the danger of unfair prejudice:
(a) concerns with the suggested ‘intractable’ quality and accuracy of interpretation of the representor’s evidence; and
(b) the persistence with which the representor avoided answering questions at the committal, either out of evasiveness, issues with the interpretation, or both.
It is submitted that such factors created difficulties in the cross-examination of the representor and led counsel for the first accused to abandon certain points that would have been pressed in trial had the representor been available.
In the course of argument, counsel for Mrs Kannan highlighted numerous passages of transcript and submitted that I should accept that the level of interpretation at the committal was of poor quality, and that when combined with a deliberately evasive witness in the representor, led to intractable unfairness which is incapable of being remedied.
It is submitted that the areas upon which the representor was cross-examined at the committal are matters than cannot now be the subject of cross-examination before the jury as the representor is deceased. It is argued that these circumstances create a degree of unfairness that cannot be overcome. Further, counsel for Mrs Kannan submit that the manner of questioning the representor with the use of open ended questions, which often occurs at the committal stage, would not have been used at trial. It is argued that this style of cross-examination raised particular problems in relation to the representor’s evidence of his interactions with the people known as ‘Vijay’ and ‘Anthony’, which related to money and the possible withdrawal of complaints made concerning the complainant. It is submitted that when cross-examined on these topics at the committal, the representor repeatedly stated that he did not understand the questions and counsel for Mrs Kannan did not press for answers or deal with him as an unresponsive witness as it would have at trial, with that opportunity for direct challenge now lost.
Moreover, counsel for Mrs Kannan object to the passage from the representor’s affidavit which it submitted contains a clear inference to the meeting with ‘Vijay’ and ‘Anthony’, as referenced by the representor in the committal evidence. Counsel for Mrs Kannan do not otherwise object to the admissibility of the rest of the affidavit.
Given that the representor is no longer available to be cross-examined on the above evidence, counsel for Mrs Kannan argue that the aforementioned issues have reduced the probative value of the relevant sections of the committal evidence, such that it is outweighed by the danger of unfair prejudice.
Counsel also adopted submissions made by counsel for Mr Kannan relating to the relevance of the committal transcript as only rebuttal evidence, as canvassed below.
Submissions for Mr Kannan
Counsel for Mr Kannan made oral submissions that the hearsay notices are irrelevant in the case against Mr Kannan. It is submitted that there is very limited evidence in the representor’s affidavit about Mr Kannan, and his evidence at the committal hearing relating to the role of Mr Kannan did not advance the prosecution case any further.
Defence counsel submits that if the representor’s evidence is to be relied upon as evidence of incriminating conduct, even if it is said to have another function, the prosecution has failed to comply with the notice requirement. Further, it indicates that the submission for Mr Kannan may feed into the separate trials application.
It is submitted that if the prosecution asserts that the evidence is relevant and admissible against Mr Kannan, it must articulate the way in which it is said to be relevant and admissible. Further, counsel for Mr Kannan submits that if the evidence is relevant at all, it is relevant as evidence of post-offence incriminating conduct and cannot be admitted.
Moreover, defence counsel expressed an inability to advance the argument any further until the prosecution indicated the basis upon which it intends to assert that the hearsay notice is relevant and admissible in regard to Mr Kannan. It noted that the cross-examination conducted by its junior counsel at the committal hearing was brief.
In relation to the committal evidence on the issue of mediation possibly occurring between the parties in India, counsel for Mr Kannan submits that, in so far as it relates to Mr Kannan, there would need to be an assessment of the probative value of the evidence. It notes that this is dependent on the case put forward by the prosecution. If it is put to the complainant in cross-examination that there was a financial motive, or that the accused conducted itself in a fashion contrary to the one that the defence have indicated, then the evidence may become relevant as rebuttal evidence. It appears to me that counsel for Mr Kannan have conceded at this stage that these matters would not be put to the complainant, nor would a defence be advanced along these lines. However, it is to be noted that, in respect of Mrs Kannan, the possibility of a similar approach was qualified by the concession that such a line of examination or defence would not be taken ‘at this stage’.
In response to the prosecution, counsel for Mr Kannan submits that, in relation to his involvement in the two telephone intercepts relating to mediation, there needs to be an evidentiary foundation for the prosecution’s assertion that is relevant and admissible against Mr Kannan.
Counsel for Mr Kannan also refers to s 20(2) of the Jury Directions Act 2015 as relating to the committal evidence. The provision holds that even if evidence is relevant for another purpose, if it is evidence of incriminating conduct, a notice has to be filed. It is submitted it is an inescapable conclusion that the evidence is evidence of incriminating conduct and that in the absence of a Notice of Incriminating Conduct, the evidence is inadmissible. In the circumstances, I am unable to make any conclusions about the possible use of the evidence at this stage of the proceedings. My opinion is that this issue should remain for further consideration and argument.
Conclusions
Committal evidence
With respect to the affidavit and committal evidence of the representor, I have read and considered each of the passages set out by the prosecution in its filed document titled, Representations in committal hearing transcript relied on by the prosecution, dated 13 February 2020. The document identifies 36 blocks of evidence proposed to be led in evidence. In broad terms, the topics which the evidence deals with include, the representor’s letter to the Australian High Commissioner on 8 August 2015 and the circumstances surrounding its writing; his contact with the AFP after the complainant was admitted to hospital; his first meetings with Mr and Mrs Kannan and the arrangements made in 2004 for the complainant to travel to Australia; the payments of money received for her assistance; that he sent the complainant to Australia to assist the Kannans on a subsequent occasion; his own financial circumstances in 2004 and why he may have sent the complainant away from his family; that he had no part to play in arrangements for the complainant to be paid in 2007, that being a matter between the Kannans – who he described as, ‘them’ – and his mother in law; that on some occasions there were telephone calls with Mrs Kannan and conversations with the complainant; whether there were occasions when he received money from the Kannans through the agency of another person; that at one point Mrs Kannan rang him to inform that the complainant was sick; that on one occasion the complainant’s daughter demanded the return of the complainant, and that it was put to the representor that at one point ‘tens of thousands of rupees ‘ were received from the Kannans over the years, either sent or handed over by another person.
It is of some significance that the representor was asked a considerable number of questions about whether he demanded money from Mrs Kannan in 2015, which resulted in a meeting with a third person or persons around October 2015. The representor claimed he was threatened and put under pressure to withdraw his complaint to the authorities. Further, questions were asked as to whether a kind of ‘mediation’ process occurred in India involving third parties said to be friends of Mrs Kannan. The impact of the witnesses’ evidence suggests that in India, at least, there were a number of ‘go-betweens’ who attempted to carry out a process of negotiation designed to involve the withdrawal of the representor’s complaint to the Australian High Commission, also described as ‘petition’, in return for the payment of money.
It is worth noting that in his descriptions of the travel arrangements for the complainant, the representor repeatedly spoke of such arrangements being with Mr and Mrs Kannan, described as, ‘them’. It is further noted that cross-examining counsel also put numerous questions and propositions to the witness based on his use of the description ‘them’, appearing, at least to some extent, to suggest and attribute some responsibility for the making of the arrangements concerning the complainant jointly to both accused.
I note also that the cross-examination conducted at the committal on behalf of Mrs Kannan could not be described as perfunctory, but rather was considered and encompassed almost 40 pages of transcript, occurring on two different occasions of hearing which were some months apart. On the other hand, it is evident that the cross-examination of the representor by counsel then appearing for Mr Kannan was more contained.
In my opinion, the evidence of the representor involving the affidavit and evidence given at the committal is admissible against both accused. Clearly the content of the affidavit focuses on the degree of involvement of Mrs Kannan in the arrangements, and the development of the particular kind of relationship she had over a long period of interactions with the representor. On the other hand, Mr Kannan is barely, if at all, mentioned throughout the affidavit. As against him, however, the affidavit provides evidence of the fact of the existence of the arrangement between the complainant and both accused, with the document capable of assessment by the jury in light of all the other evidence that speaks to Mr Kannan’s involvement in that arrangement. In my opinion, the probative value of the affidavit and the committal evidence, as against both accused, is significant, and the jury can, should it choose to do so, rationally attach significant weight to that evidence.
As to the probative weight of the evidence in combination, I am of the opinion that, if accepted, it is capable of providing support for the complainant’s version of events that there was an arrangement for her to come to Australia to provide assistance to both accused; that she would be paid for those services; that the period of the arrangement was one that was expected to be beyond the one month short-stay visa that was granted; and that upon requests made to return the complainant to India, Mrs Kannan refused to facilitate her return. Further, the evidence as it emerged at the committal hearing is capable of rebutting a possible defence that claims made about the complainant’s ill-treatment by the accused were falsely concocted, as well as allegations of non-payment of remuneration, in an orchestrated attempt to extort money from the Kannans by the complainant’s family in India. In my opinion, the prosecution are entitled to lead the evidence on these bases.
This body of evidence will not be presented to the jury as a standalone and complete bundle of committal transcript. The prosecution intends that edited extracts will be produced, and the evidence read-in by counsel.
Finally, in respect of the committal evidence, it is apparent to me that counsel who appeared for both accused at the committal had both the reasonable opportunity to cross-examine the representor, and did so.
The facsimile letter
Similarly, the facsimile letter of 8 August 2015 is admissible against both accused, and possesses significant probative value. Both accused were expressly mentioned in the facsimile letter, in relation to their involvement in the arrangements for the complainant to travel to Australia in 2007. These representations are consistent with the VARE evidence of the complainant, as discussed in previous rulings, as being well consistent with parts of the committal evidence, as discussed above.
Telephone conversations
As to the telephone conversations of 24 September 2015, objections were maintained as to their admissibility into evidence. In my opinion, the conversations are admissible against Mrs Kannan. It is clear that Mrs Kannan is discussed at length in the course of the conversations involving the representor. However, I am not satisfied the conversations are admissible against Mr Kannan, beyond evidencing the fact that an agreement existed to engage the complainant in a form of employment. Similarly, in respect of the representor’s affidavit, the passages of telephone conversation sought to be led by the prosecution appears not to mention Mr Kannan or his involvement, or suggest that he is implicated in the alleged offending. Nothing Mr Kannan is subsequently alleged to have said in subsequent intercepted telephone conversations refers to the conversations of 25 September 2015. In short, nothing expressed by the representor appears to directly implicate Mr Kannan. By comparison, the representations speak as to the involvement of Mrs Kannan in the arrangements, and particularly the agreement that monthly payments would be made for the complainant’s work.
In all the circumstances, my opinion is that the evidence possesses significant probative value to the prosecution case. It is to be observed that this evidence forms part of a circumstantial case put against the accused, and there is a large body of evidence that otherwise will be put to the jury in proof of the prosecution’s allegations.
I make the comment that, at this point, there is no clear indication as to how this evidence will be adduced. It is to be assumed that the prosecution will have the witnesses give direct evidence of the conversations and use the notes as a means to refresh their memories.
Emails
I am of the opinion that the emails of 29 September 2015 are admissible against Mrs Kannan, as the email addresses from which the so-called obscene statements were sent are directly associated with Mrs Kannan. However, the emails and email chains are not admissible against Mr Kannan, given that he is not referred to in any way or linked to them or their sending by Mrs Kannan. Further, in his facsimile letter of 8 August 2015, the representor speaks of Mrs Kannan responding to communications with obscene emails, not Mr Kannan.
The section 137 discretion
Having concluded the challenged material is admissible, it is necessary to address whether the probative value of this evidence is outweighed by any prejudice occasioned by the introduction of this material.
In Bray v The Queen,[6] s 65 of the Act was considered after a complainant in a sexual offence case became unavailable to give evidence at trial. The complainant had been the subject of cross-examination at the committal, but died prior to trial. The applicant on an interlocutory appeal argued that s 137 of the Act applied so that, in the circumstances of that case, the probative value of the evidence was outweighed by the danger of unfair prejudice.
[6][2014] VSCA 276.
The Court in Bray observed that the trial judge had assessed the probative value of the evidence, as obliged to in conducting the exercise required by s 137 of the Act. The Court of Appeal observed that although there were inconsistencies in the evidence given by the complainant at the committal, the evidence was still clear, and nothing about it suggested implausibility. Further, the appeal court took the view that the complainant had not given evidence that was unresponsive or had given an account that appeared to be implausible.[7]
[7]Ibid at [69].
The Court referred to the requirement that a three-step test be undertaken to assess the possibility of unfair prejudice within the meaning of s 137 of the Act. Santamaria JA, with Maxwell P and Weinberg JA concurring, observed:
The fact that it is proposed, in a criminal proceeding, to lead hearsay evidence in the form of a previous representation made in the course of giving evidence in another proceeding will commonly raise the danger of unfair prejudice within the meaning of s 137 of the Act. However, in engaging in the balancing exercise under that section, it must be remembered that s 65(3) is a provision specifically directed to criminal proceedings. It stipulates that one or other of two conditions must be satisfied for admissibility: either (a) the defendant in the criminal proceeding cross-examined the person who made the previous representation, or (b) the defendant had a reasonable opportunity to do so. In each case, the three step analysis contained in s 137 must be carried out. This means, first, an assessment of probative value, next an assessment of the danger of unfair prejudice, and lastly, the weighing process. The fact that a defendant chose not to avail himself or herself of the opportunity to cross-examine the maker of a representation cannot, by itself, mean that the evidence must be excluded. Such a principle would subvert the policy of the Act as manifested in the statutory exceptions to the hearsay rule.[8]
[8]Ibid at [70].
Accordingly, the three-step analysis contained in s 137 of the Act, and as emphasised by the Court in Bray, must take place in respect of the evidence under consideration. I have indicated above in respect of each piece of evidence, that the evidence which is admissible is significantly probative to the prosecution case in respect of both accused. This is especially so when it is accepted that the pieces of evidence form part of an overall circumstantial case, with its foundations in the VARE evidence provided by the complainant. In my opinion, the evidence is of such probative value that the jury can give weight to it should it choose to do so. Furthermore it is, if accepted, capable of rationally affecting the determination of facts that will be in issue before the jury.
In respect of the affidavit and committal evidence, arguably the most significant body of evidence sought to be led by the prosecution under the ‘unavailability provisions’, my opinion is that the requirements of s 65(3) have been satisfied on the basis that the representor has been cross-examined. Moreover, such cross-examination was substantially conducted by counsel still appearing for Mrs Kannan in this trial.
It is suggested that the unfairness in admitting the committal evidence results from the dubious competence of the interpreter, the resultant poor quality of the interpretations provided, along with the asserted evasiveness of the witness. Counsel for Mrs Kannan referred the Court to numerous examples of passages in claiming that the incompetence of the interpreter or evasiveness of the witness was clearly evident.
There is no evidence before me beyond what appears on the face of the transcript to assist in any determination of the validity of these complaints. Whatever discussion ensued in which complaints about these issues may have been ventilated are simply recorded as ‘discussion ensued’. In those circumstances, it is impossible for this Court to form views on the quality of the interpreter, the approach the representor took to answers in cross-examination, or the possible reasons for his claimed evasiveness. Whilst counsel had the advantage of being present and conducting the cross-examination, this Court did not have the opportunity to see and hear the events that unfolded. All I have before me is the transcript of the evidence. Having read the material carefully, I am of the opinion it is quite inconclusive as to the assertions raised in argument and put forward as demonstrating unfairness for the purposes of s 137 of the Act.
Taking all matters into account in conducting the required balancing exercise, I am not satisfied that unfairness has been demonstrated to the point where it would outweigh the probative value of the evidence, and thus should be excluded from the jury’s consideration.
As to the risk of any misuse of the evidence by the jury, competing arguments can be put on behalf of both accused and the prosecution. It is also open for the jury to conclude that, in giving evidence by video link from India in circumstances where the interpreter was in the Melbourne courtroom, the disadvantages were the cause of misunderstandings and difficulties in being understood on both sides, or incompetence and evasiveness. Along with the impact of different cultures in the courtroom and questioning process, the circumstances did not represent the optimum situation for the obtaining of evidence. However, that is a far cry from establishing that such circumstances led to the disadvantages that are now put forward on behalf of the accused. But, these are all matters for the jury’s consideration, with any claimed disadvantages in the process, evasiveness or incompetence capable of being easily pointed out to the jury. Furthermore, counsel’s arguments and appropriate judicial directions can ameliorate risks of unfair prejudice.[9]
[9]Norris v The Queen; Ross v The Queen [2018] VSCA 137 at [28] and [49].
In regards to judicial directions designed to ameliorate risk, in Norris v The Queen,[10] a case involving the unavailability of witnesses who gave evidence at a committal and later feared for their safety and became ‘unavailable’, the Court observed:
Furthermore, assuming in the applicants’ favour that there may be some unfairness to the defence cases flowing from the absence of the complainants, any such unfairness is, in our view, capable of adequate amelioration by judicial direction. Thus, it may be expected that the trial judge will instruct the jury of the need to take into account perceived disadvantages flowing from the inability to observe the complainants giving their evidence, and of the need for caution when evaluating the meaning of those passages of evidence in which part of the question or the answer is indistinct. We anticipate that the judge will also direct the jury as to the differences between cross-examination at committal and trial, and instruct the jury to take into account any identified disadvantages flowing to the applicants’ cases from the inability of counsel at trial to cross-examine on further or new matters relevant to the defence cases that have arisen since the committal proceedings.[11]
[10][2018] VSCA 137.
[11]Ibid at [49].
In the present case, there is no reason to conclude that such directions would not be effective in reducing any risk that the jury would misuse the evidence under consideration. In all the circumstances, I consider that the accused can have a fair trial.
In argument, Mrs Kannan referred to Luna v The Queen[12] and R v Lynch & Watson.[13] It is notable that both cases were different from the present case. In Luna, the complainant in a sexual offence case was cross-examined and subsequently died before the trial. There was newly obtained information that the complainant was receiving psychiatric treatment at the time of the alleged offending, which was not known at the time of cross-examination. However, in an interlocutory application, the Court did not consider this to have been a matter that warranted the trial judge to disallow the evidence to be adduced before the jury at trial. It is to be noted that the issue before the jury was consent. The Court refused the interlocutory application, concluding that the extent of prejudice was not of such an order that the absence of the complainant would result in an unfair trial. In contrast, in the present case, the representor is not a complainant but a witness.
[12][2016] VSCA 10.
[13][1978] Tas SR 190.
In my opinion, it has not been shown that there would be a substantial disadvantage or unfairness demonstrated by the admission of the evidence, such that it demands its exclusion.[14]
[14]See Norris v The Queen; Ross v The Queen [2018] VSCA 137.
As to the remaining areas of evidence sought to be led, I have similarly found that the probative value is significant to the prosecution case. Without repeating the detail of each piece of evidence, in each case, the evidence is capable of rationally affecting the determination of facts that will be in issue before the jury. Again, each is to be ultimately evaluated as parts of a broader circumstantial case of wide ambit and many parts.
Further, in each case, and for similar reasons set out above in relation to the affidavit and committal evidence, my opinion is that there is no degree of unfairness that outweighs the probative value of the evidence. As above, the jury can be given appropriate directions to alleviate any unfairness that might be created by the absence of the witness. It is worth noting that the material sought to be adduced, as set out in the notice, was all part of the hand-up brief served for the purposes of committal. None of the material was new, or subsequent to the committal. To that extent, the circumstances are different to those which prevailed in the case of Luna.
Accordingly, I rule that the evidence in the prosecution hearsay notice will be admitted in accordance with the terms of the ruling I have made.
ANNEXURE 1
| a. Substance of the previous representation | b. The date, time, place and circumstances at or in which each representation was made | c. The person by whom and to whom the representation was made |
| The contents of the affidavit that was sworn/affirmed by the representor and admitted as the substance of his evidence in chief at the joint committal of the accused. | Affidavits sworn/affirmed by the representor on 13 April 2017 and certified under subsection 26(1) of the Foreign Evidence Act 1994, which was admitted during his evidence in chief on 13 December 2017 at the joint committal hearing of the accused held at the Melbourne Magistrates’ Court | The evidence of the representor at the committal was recorded by the Magistrates Court at Melbourne and transcribed by the Victorian Government Reporting Service. (Affidavit of representor, at Depositions pages 526-535, and transcript of evidence in chief at committal at 142-144). |
| The answers given by representor to questions asked of him during his oral evidence at the committal hearing of the accused, including his cross examination by counsel acting for each accused. | The oral evidence of the representor given under an affirmation to tell the truth on 13 December 2017 and on 7 February 2018 at the joint committal hearing of the accused held at the Melbourne Magistrates’ Court. | The evidence of the representor at the committal was recorded by the Magistrates Court at Melbourne and transcribed by the Victorian Government Reporting Service. (Transcript of committal at 142-164 and 193-206.) |
| The contents of a facsimile letter received by the Australian High Commission in New Delhi India on 8 August 2015 in which the following representations were made: His mother-in-law Rajakshmi Natarajan lived with him for more than 15 years at No. 67/70, Thoppu Street, Mayiladuthurai-609001, Nagai Dt. Kandasamy Kannan, who was a friend of a friend of his and who lived in Australia, asked him for the help of his mother-in-law following the birth of a child. As a result, his mother-in-law applied for a visitor-visa through the Australian High Commission in New Delhi in 2004. After 6 months, she came back to live with him and Kandasamy Kannan again asked him to send her back to Australia. This year (2015) they tried to know the health of his mother-in-law, so they sent an email to Kumuthini Kannan, the wife of Kandasamy Kannan. She replied with obscene words. They repeatedly contacted both Kandasamy Kannan and Kumuthini Kannan, without success. They now want to know the health of his mother-in-law and also ask for her return to India, but both the Kannans demanded money for his mother- in-law's return. He requests an enquiry into the matter to help them. | A letter from the representor sent by way of facsimile transmission on 8 August 2015 at 5:18pm to the Australian High Commission, New Delhi, India. | The representor Benjamin Gwyn Nicholls, Principal Migration Officer, Department of Immigration and Border Patrol, Australian High Commission, New Delhi, India (Statement of Benjamin Gwyn Nicholls, Depositions at 91 [8-9], facsimile letter exhibited at 265). |
| The representor’s wife was frequently in contact with Rajalakshmi Natarajan. He said on the last occasion, Natarajan was significantly unwell and was unable to articulate words, which caused them concern. He indicated that the family then contacted Kumi (Kumuthini Kannan) and were verbally abused. The family had requested the return of Rajalakshmi Natarajan to which she responded they would need to pay the ticket if they wished for her return. The initial agreement had been for Rajalakshmi Natarajan to assist Kumi and her family for five years and subsequently to be returned to India. After the agreed period, every request to have her returned was met with similar abuse. When asked about the nature of the agreement between the family and Kumi, the representor said he did not care about the money but wished for Rajalakshmi Natarajan to be returned. | A telephone conversation conducted over the speaker of a phone on 24 September 2015 commencing at 6:15pm at the Box Hill Hospital in which questions were asked of the representor by Samanthi Fernandez and Shivanthi Siva, with the assistance of Leslie Kuddithamby, a Tamil translator, and in the presence of Rajalakshmi Natarajan. | The representor Samanthi Fernandez, Shivanthi Siva (who also spoke and understood the Tamil language) Department of Immigration and Border Protection (Statement of Shivanthi Siva dated 9 June 2016, Depositions at 272, [18] and typed notes of the conversation at 277-280) Rajalakshmi Natarajan Leslie Kuddithamby |
| The representor told Rajalakshmi Natarajan the following: There was a financial agreement with the Kannans for the last eight years where 8000 rupees was to be paid per month. The only payments received were in the amounts of 30,000 rupees, 15,000 rupees and 10,000 rupees. The representor had asked Kumi about the money, however he was verbally abused. The representor declared that he only wanted his mother-in-law home and was no longer concerned about the money. | A telephone conversation conducted over the speaker of a phone on 24 September 2015 sometime after 6:15pm at the Box Hill Hospital conducted in the Tamil language between the representor and Rajalakshmi Natarajan in the presence of Samanthi Fernandez, Shivanthi Siva, and translated into English by Leslie Kuddithamby, a Tamil translator. | The representor Rajalakshmi Natarajan Shivanthi Siva (who also spoke and understood the Tamil language) (Statement of Shivanthi Siva dated 9 June 2016, Depositions at 272, [20] and typed notes of the conversation at 277-280) Leslie Kuddithamby |
| Email to Benjamin Nicholls from the representor in which he identifies himself and attaches a photo of Rajalakshmi Natarajan | Email to Benjamin Nicholls dated 29 September 2015 at 12:59pm from “vshanmuga priya [email protected]” following a phone call between Benjamin Nicholls and the representor made on the same date with the assistance of a Tamil speaking interpreter | The representor Benjamin Gwyn Nicholls, Principal Migration Officer, Department of Immigration and Border Patrol. Australian High Commission, New Delhi, India (Statement of Benjamin Gwyn Nicholls dated 7 April 2016, Depositions at 91 [10 – 11]], and email and photo exhibited at 267-268) |
| Email to Benjamin Nicholls in which the representor: Provided the contact numbers of the Kannans Represented that they (the Kannans) didn’t pick up phone calls made to them. Represented that they contacted him from unknown numbers through the internet or called him from numbers that were not displayed. Forwarded an email chain between the representor and Luke Mahoney of the Australian Federal Police on 28 September 2015, in which Kumuthini Kannan’s email addresses were provided. | Email to Benjamin Nicholls dated 29 September 2015 at 1:04pm from “vshanmuga priya [email protected]” following a phone call between Benjamin Nicholls and the representor made on the same date with the assistance of a Tamil speaking interpreter | The representor Benjamin Gwyn Nicholls, Principal Migration Officer, Department of Immigration and Border Patrol. Australian High Commission, New Delhi, India (Statement of Benjamin Gwyn Nicholls dated 7 April 2016, Depositions at 91 [10- 11], and email exhibited at 270-271) |
| Email to Benjamin Nichols in which the representor forwarded an email chain concerning the subject “Rajalakshmi” comprising of an email from him to Kumuthini Kannan dated 11 May 2015 and her reply dated 13 May 2015 at 9:11pm, “..ck you” | Email to Benjamin Nicholls dated 29 September 2015 at 1:07pm from “vshanmuga priya [email protected]” “Re: Rajalakshmi”, following a phone call between Benjamin Nicholls and the representor made on the same date with the assistance of a Tamil speaking interpreter | The representor Benjamin Gwyn Nicholls, Principal Migration Officer, Department of Immigration and Border Patrol. Australian High Commission, New Delhi, India (Statement of Benjamin Gwyn Nicholls dated 7 April 2016, Depositions at 91 [10-11], and email exhibited at 269) |
| Email to Benjamin Nicholls in which the representor forwarded an email chain concerning the subject “Re Rajalakshmi” comprising of an email from him to Kumuthini Kannan dated 11 May 2015 at 3:09pm and her reply dated 13 May 2015 at 9:50pm, in large letters, ”Ask her to go fuck herself!!!” | Email to Benjamin Nicholls dated 29 September 2015 at 5:37pm from “vshanmuga priya [email protected]” following a phone call between Benjamin Nicholls and the representor made on the same date with the assistance of a Tamil speaking interpreter | The representor Benjamin Gwyn Nicholls, Principal Migration Officer, Department of Immigration and Border Patrol. Australian High Commission, New Delhi, India (Statement of Benjamin Gwyn Nicholls dated 7 April 2016, Depositions at 91 [10 – 11], and email exhibited at 266) |
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