R v Kannan (Ruling No 12) - [2021] VSC 39

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:	11, 12, 13 & 16 March 2020
DATE OF RULING:	7 February 2021
CASE MAY BE CITED AS:	R v Kannan & Anor (Ruling No 12)
MEDIUM NEUTRAL CITATION:	[2021] VSC 39

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CRIMINAL LAW – Ruling – Two accused – 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 for separate trial – Prejudice to fair trial – Application refused – Criminal Procedure Act 2009 (Vic) s 193(2).

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APPEARANCES:	Counsel	Solicitors
For the Crown	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

This ruling concerns an application brought by Kandasamy Kannan (‘Mr Kannan’) for a separate trial from his wife Kumuthini Kannan (‘Mrs Kannan’) in relation to the slavery-based charges they each face.

The application is made on the basis that a joint trial will result in Mr Kannan not receiving a fair trial.

Background

The accused are each charged with the following offences, 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.

I have summarised the prosecution case against the two accused in a previous ruling,[1] and will only do so again to the extent it is necessary to make this ruling capable of being understood.
[1]See R v Kannan & Anor (Ruling No 1) [2019] VSC 461R.

In this matter the prosecution have filed a prosecution summary of opening and the defence have filed responses. There have been extensive pre-trial arguments during which the evidence in the matter has been examined thoroughly and the facts and circumstances relied on by the prosecution have been referred to in detail. Furthermore, the court has delivered multiple rulings.

The accused were married and lived together with their three children during the period alleged in the indictment. They remain husband and wife, and have continued to live together, except for a period of weeks following Mrs Kannan’s bail being revoked on 20 February 2020. Mrs Kannan’s grant of bail was restored on 25 March 2020 after it became evident that COVID-19 restrictions meant this trial could not proceed for a considerable period.

The prosecution have indicated that the cases will be put against each accused as…

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 12)

Details

AGLC: R v Kannan (Ruling No 12) [2021] VSC 39
Case: [2021] VSC 39
Decision Date: 7 February 2021

CaseChat Overview and Summary

In this case, the respondents, Kannan and another individual, faced charges of intentionally possessing a slave and exercising ownership over a slave, including using the slave. They applied for separate trials under section 193(2) of the Criminal Procedure Act 2009 (Vic). The application was denied by the trial judge, who reasoned that a joint trial would not result in prejudice to either respondent's right to a fair trial. The respondents appealed against the refusal of their application for a separate trial.

The primary legal issue was whether the denial of the application for separate trials would cause prejudice to the respondents' right to a fair trial. The respondents argued that the trial judge failed to properly consider the prejudice to a fair trial and that the joint trial would inevitably lead to prejudice. The respondents contended that the evidence against each respondent was different and that a joint trial would result in a 'spill-over' of evidence from one respondent to the other. The Crown, on the other hand, argued that there was no prejudice to a fair trial and that a joint trial was appropriate.

The court held that the trial judge had considered the issue of prejudice to a fair trial and had found that there was no prejudice to either respondent's right to a fair trial. The court held that the trial judge had correctly applied the law and had not erred in denying the application for separate trials. The court held that the evidence against each respondent was not so different that a joint trial would result in prejudice. The court held that the joint trial would not result in a 'spill-over' of evidence from one respondent to the other. The court held that the respondents had failed to demonstrate that the joint trial would result in prejudice to their right to a fair trial.

The appeal was dismissed, and the respondents' application for separate trials was denied. The final orders were that the respondents' appeal against the refusal of their application for separate trials be dismissed.

Orders