R v Kannan (Ruling No 11)
[2020] VSC 124
•19 March 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: | 18 March 2020 |
DATE OF JUDGMENT: | 19 March 2020 |
CASE MAY BE CITED AS: | R v Kannan & Anor (Ruling No 11) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 124 |
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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 – Application to pre-record witness evidence before trial – Application granted – Criminal Procedure Act 2009 (Vic) s 198 and 232.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms T. McDonald SC with Mr Y. Hardjadibrata and Ms S. Bruhn | 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 accused are each charged with the following offences, both contrary to 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 has applied for an order pursuant to s 198 of the Criminal Procedure Act (‘the Act’) that the evidence of Rajalakshmi Natarajan (‘the complainant’) be heard and recorded before the empanelment of the jury. The application is in written form, and was supplemented by brief oral submissions.
In R v Kannan & Anor (Ruling 1)[1], I determined that the complainant is a vulnerable adult complainant, pursuant to s 15YAA of the Crimes Act 1914 (Cth).
[1][2019] VSC 461R.
Relevant background
The allegations in this matter came to light in the months following the admission of the complainant into the Box Hill Hospital on 30 July 2015. The complainant was gravely ill at the time of her admission to hospital. The accused were charged with the two offences alleged in the indictment in 2015.
The complainant arrived in Australia in August 2007. The prosecution case is that from the time of her arrival she remained in Australia until her admission into hospital. During the period specified in the indictment she is alleged to have been subjected to slave like conditions while living and working in the household of the two accused. The accused deny the charges laid against them, and will enter pleas of not guilty when a jury is empanelled.
The prosecution have indicated the complainant wishes to return to her home in India as soon as matters have reached a point where she is able to do so. It is of considerable relevance that a very significant period has elapsed since her arrival in Australia in 2007. That period includes nearly 5 years waiting for the resolution of these proceedings.
Following the imminent conclusion of a very lengthy pre-trial argument, it was expected that a jury would be immediately empanelled. The trial is anticipated to last approximately six to eight weeks, on the assumption that it would be a joint trial involving both accused. Mr Kannan recently applied for a separate trial and at the date of this ruling I have not delivered a ruling in that application. I am of the opinion that the resolution of this application for pre-recorded evidence is not dependent on the finalisation of the separate trial application.
By early January 2020, it became well known that a serious form of coronavirus was developing in an overseas country. On 12 March 2020, the World Health Organisation declared the existence of a pandemic. Subsequently, on 14 March 2020, the Supreme Court of Victoria and County Court of Victoria announced the decision to suspend all new jury trials from 16 March 2020 until further notice. In practical terms, this announcement means that it is uncertain when a jury can be empanelled in this trial.
I am satisfied that it is likely the delay in empanelling a jury will be significant, measured in months rather than weeks.
It is in the above context that the prosecution has applied for the evidence of the complainant to be pre-recorded before the empanelment of the jury takes place.
Grounds for the application
The prosecution submits that it is in the interests of justice that the evidence of the complainant be taken as soon as practicable before trial. It sets out the following grounds in support of the application:
(a) Suitable technical facilities are available to pre-record the complainant’s evidence for later playing to a jury;
(b) The uncertainty of the date of the jury trial having regard to the impact of the COVID-19 virus;
(c) The impact of the COVID-19 virus on the ability of the complainant to physically attend court to give her evidence at a future date if her current residential accommodation is locked down and no suitable residential accommodation can be found for her;
(d) The impact of the COVID-19 virus on the complainant, a 65 year old woman with ongoing health issues, if the pandemic worsens;
(e) To enable the complainant to finally return to her family in her home country of India after nearly 13 years in Australia.
Applicable law
Section 198 of the Act provides that:
(1)At any time except during trial, a party to a criminal proceeding may apply to the court for an order under this section that the evidence (including cross-examination and re-examination) of a person be taken at a time and place fixed by the court.
(2)An application may be made under subsection (1) only if
(c)it is reasonably anticipated that the person will be unavailable to give evidence at the trial of the accused; or
(d)the parties agree that the evidence of the person should be taken before the trial of the accused; or
(e)for any other reason the court considers that it is appropriate that the evidence of the person should be taken before the trial of the accused.
(3)An application under subsection (1) must state the grounds on which an order is sought.
(4)The court must not make an order referred to in sub-section (1) unless satisfied that it is in the interests of justice that the evidence of the witness be taken.
(5)An order referred to in subsection (1) may include a direction that the evidence of the person is to be given or recorded in a specified manner in accordance with the Evidence (Miscellaneous Provisions) Act 1958.
Further, s 232 of the Act provides:
(1) The trial judge may permit a person to give evidence –
(a)with the consent of the parties, by the witness reading from the statement of the witness prepared in advance of giving evidence’;
(b)if the person is called in his or her capacity as an expert witness, by the presentation of audio or audiovisual material;
(c) by means of playing an audio or audiovisual recording;
(d)in any other manner that the trial judge considers may be of assistance.
(2) Nothing in subsection (1) precludes –
(a)in the case of subsection (1)(b), the questioning of an expert witness by cross-examination or otherwise before, during or after a presentation; or
(b)in the case of subsection (1)(c), if unanticipated issues arise during the trial, the trial judge making an order that the witness attend before the court.
…
Submissions for the prosecution
The prosecution submits that the pre-requisites of the application to pre-record the complainant’s evidence have been satisfied. It noted that all parties in this matter agree that the evidence can be taken in the proposed way.
Alternatively, the prosecution submitted that there was a number of other reasons why the evidence should be taken in this manner, as set out in the written application and discussed above.
Submissions for the accused
Both accused do not oppose the application made by the prosecution, though counsel for Mrs Kannan reserved her position with respect to the extent and nature of how recorded product would be played to the jury. I am of the opinion that this was an entirely appropriate position to take in the circumstances, and final decisions can be made about these matters at a later stage of the proceedings.
Counsel for Mr Kannan adopted the same position with respect to the form in which the ultimate recording takes, and how it might be presented to the jury.
Discussion
In the DPP v Byrne,[2] John Dixon J ordered that the evidence of a witness in a trial of attempted murder and intentionally causing serious injury be taken prior to trial, including cross examination and re-examination.
[2][2016] VSC 216.
The trial had adjourned because the court was unable to provide a judge and court room to enable the hearing to proceed. It transpired that a prosecution witness had made arrangements to travel overseas without a fixed return date, expecting that the trial would have been completed by the time of her departure. The prosecution was unaware of the inability of the court to hear the trial on the specified hearing date, and the potential absence of the witness on the adjourned date.
The witness was an eyewitness to the alleged offence and a key witness in the trial. Her evidence was significant to the prosecution case, in circumstances where the accused contested the evidence of the identification of him as the offender. As such, the prosecution applied for the evidence of the witness to be recorded pursuant to s 198 of the Act.
His Honour granted the application to pre-record the witness’ evidence on the basis that:
a) Modern communication technology available to the court and the parties meant that it was likely that any adverse consequences of taking the evidence in this manner could be addressed.
b) Despite concerns raised by the defence that issues might arise during the trial which could not be put to the witness, giving rise to unfairness or prejudice to the accused, there were a number of precautions that could be taken against that consequence and the prospect of unfairness.
c) The precautions that could be taken included the witness’ availability to give evidence via Skype or other video conferencing facilities from overseas, so that any unexpected issues that might arise could be put to her and her evidence taken. Further, if a significant issue arose, it could be arranged for the witness to return to Melbourne for the purposes of giving further evidence. However, his Honour regarded these latter matters as being a ‘fall-back position’.
d) The primary position was that the circumstances of the case were sufficiently known to enable competent counsel to appropriately cross-examine the witness prior to leaving the country, and that in the ordinary course of events, it was unlikely to be necessary to invoke any unusual arrangements.
Accordingly, the judge ordered that the evidence be taken prior to the jury empanelment.
Conclusions
Section 232 of the Act provides that a trial judge may permit a person to give evidence either by means of playing an audio or audio-visual recording, or in any other manner that the trial judge considers may be of assistance. This provision gives the trial judge a wide discretion to decide whether evidence can or should be allowed to be given in the proposed form.
On an application being made under s 198(1) of the Act, pursuant to s 198(2), evidence may be taken from a witness before trial for a number of specified reasons, including ‘any other reason the court considers that is appropriate’ that the evidence of the person should be taken before the trial of the accused.
Section 198(3) mandates that an application must state the grounds on which an order is sought. Importantly, pursuant to section 198(4), the court must not make an order referred to in s 198(1) unless it is satisfied that it is in the interests of justice that the evidence of the witness be taken.
In my opinion, the grounds for the application have been made out. Further, I am also satisfied that the legislative pre-requisites have been met.
The circumstances that prevail here are unusual. Where a matter is adjourned, the period of that adjournment is almost always to a specific date. The current situation does not allow for this, as the next significant step in this trial is the empanelment of a jury, and the occurrence of that event is now uncertain.
I am particularly mindful that the complainant is a vulnerable adult complainant, whose evidence in chief has already been recorded and will be adduced before the jury in the form of six VARE recordings, supplemented by some further evidence in chief to be led by the prosecution. It is anticipated that the complainant will be the subject of cross-examination and re-examination in a “live” setting. It is presently estimated that the evidence of the complainant will take between one to two weeks to adduce. In the event that a separate trial is ordered in the case of Mr Kannan, that estimate will inevitably increase.
The complainant is aged in her mid-sixties. I have been informed, and accept, that she is not in particularly good health, being subject to a supervised daily regime of prescription medications. Since her admission into hospital in 2015, she also has a permanently fitted catheter and urine-bag and is required to visit hospital each month to have the latter reviewed. The complainant currently resides in a residential aged care facility, where she has remained since approximately October 2015. I note that the facility has some on-site nursing facilities.
The complainant has waited almost five years for this case to be resolved, in circumstances where she would have otherwise returned to her home in India, which she apparently wishes to do so as soon as possible. I was informed that since the death of her son-in-law in India last year, her anxiety about returning home as soon as possible has increased. I note that she has no family in Australia.
On the other hand, I am mindful that the two accused have waited a similar period for the resolution of the charges against them. Mrs Kannan is presently in custody, having had her bail revoked some weeks ago. She is also in a reduced health condition, which is a matter I have addressed on a number of occasions.
In resolving this application, I have taken into account the possibility of any unfairness that may arise as a result of the pre-recording of the evidence of the complainant, who is the principal and substantial witness for the prosecution. It is appropriate to observe that the prosecution case is unlikely to survive without the evidence of the complainant being available.
In my opinion, there is no degree of unfairness that would cause me to regard the taking of pre-recorded evidence as leading to an unfair trial. Having reviewed the available technology, I am of the opinion that a satisfactory process can occur to enable the complainant to give her evidence to ensure a just outcome for both the prosecution and the defence. I am satisfied that judicial directions can be given to the jury if necessary to reduce any unfairness to an acceptable level. However, presently, I do not perceive that any unfairness would occur.
Furthermore, I am satisfied that the circumstances of the case are sufficiently known to enable Counsel appearing in the trial to appropriately examine and cross-examine the witness.
In granting this application, I am also conscious that if the complainant returns to India before a jury is empanelled, there is a possibility she may not be available for further audio-visual evidence or be able to return to Australia. In that sense, the ‘fall-back’ circumstances which were present in Byrne may not be available in the present case.
Taking all the above matters into account, in my opinion, it is in the interests of justice for the evidence of the complainant to be taken at a time and place fixed by the Court, prior to empanelment of the jury. Further, pursuant to s 232 of the Act, that evidence should be taken by means of an audio-visual recording.
My decision to grant the application of the prosecution is made in the context of the two accused not opposing the application.
In all the circumstances, I will order that the witness give evidence prior to trial, including further evidence in chief, cross-examination and re-examination, and that the evidence be recorded in audio visual form. In my opinion, it is in the interests of justice to make such an order.
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