R v Kannan (Ruling No 11) - [2020] VSC 124

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:	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…

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 11)

Details

AGLC: R v Kannan (Ruling No 11) [2020] VSC 124
Case: [2020] VSC 124
Decision Date: 19 March 2020

CaseChat Overview and Summary

The ruling R v Kannan (Ruling No 11) involved the defendant, Mr Kannan, who was facing charges of intentionally possessing a slave and exercising over a slave any of the powers attaching to the right of ownership, namely use. The case was heard by the County Court of Victoria. The primary issue before the court was whether the defendant's application to pre-record the evidence of a key witness should be granted, in accordance with sections 198 and 232 of the Criminal Procedure Act 2009 (Vic). The court was required to balance the potential benefits of pre-recording the evidence against any possible prejudice to the defendant.

The court considered several factors in reaching its decision. These included the potential for the witness to suffer trauma from giving evidence in person, the witness's age and health, and the likelihood of the witness being unavailable to give evidence at trial. The court also weighed the potential for the defendant to be prejudiced by the pre-recording of the evidence, including the possibility that the defendant might not have the opportunity to cross-examine the witness in person. Ultimately, the court found that the benefits of pre-recording the evidence outweighed the potential prejudice to the defendant.

In its ruling, the court granted the defendant's application to pre-record the evidence of the key witness. The court noted that the witness was likely to suffer significant trauma if required to give evidence in person and that the witness's health and age made it unlikely that they would be available to give evidence at trial. The court also found that the potential for prejudice to the defendant was minimal, as the defendant would still have the opportunity to cross-examine the witness through counsel. The final orders of the court included the pre-recording of the witness's evidence and the preservation of the defendant's right to cross-examine the witness through counsel at trial.

Orders