R v Kannan (Ruling No 12)
[2021] VSC 39
•7 February 2021
| 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: | 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 principal offenders. It is not proposed that s 11.2(3) of the Code applies, namely that the accused committed the alleged offending by joint commission pursuant to an agreement.
The applicable law on separate trial applications
Where an indictment names more than one accused, the charges against all accused must be tried together unless an order is made under s 193(2) of the Criminal Procedure Act 2009 (Vic) (‘the Act’).
Section 193 of the Act provides:
Order for separate trial
(1) If an indictment contains more than one charge, the court may order that one or more of the charges be tried separately.
(2) If an indictment names more than one accused, the court may order that charges against a specified accused be tried separately.
(3) The court may make an order under subsection (1) or (2) if the court considers that –
(a) the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or
(b) a trial with the co-accused would prejudice the fair trial of the accused; or
(c) for any other reason it is appropriate to do so.
Applicable principles
The following principle is relevant to the interpretation of s 193(3) of the Act, and a decision to order a separate trial, namely that there must be substantial prejudice to an accused from a jointly held trial and such prejudice cannot be nullified by appropriate judicial directions.[2]
[2]Mwamba v R [2015] VSCA 338, [24].
Furthermore, referring to the principles outlined in Demirok,[3] various public interest factors are to be taken into account, including:
[3]Demirok [1976] VR 244, 254.
(a) the expense to the public if more than one trial is to be conducted;
(b) the risk of inconsistent verdicts which are against the interests of justice, such that differences in the defences or role of the accused persons should be resolved by the same jury at the same trial;
(c) the expeditious running of trial processes, whereby repeated retrial of the same issues should only occur where the interests of justice require it; and
(d) the convenience of witnesses, who should not be required to give evidence of the same events at successive trials without good reason.
The above stated principles and factors have been discussed in cases including Mwamba,[4] Ferguson,[5] and Kovacs.[6]
[4][2015] VSCA 338.
[5][2009] VSCA 338.
[6](2008) 192 A Crim R 345.
A significant factor to be considered in exercising the discretion whether to order separate trial is whether the evidence against one accused is significantly different to the evidence against the other accused.[7] This is a factor that arises in the present application.
[7]Darby v R (1982) 148 CLR 668, 678 cited in Ferguson v R [2009] VSCA 338, [25] VSCA 198, [310].
Even if satisfied that a precondition under s 193(3) of the Act is fulfilled, the Court retains a discretion and must consider any countervailing factors. It is clear that the discretion to order separate trials must be exercised judicially.
Submissions for the accused
Counsel for Mr Kannan make the following submissions in support of his application for a separate trial:
(a) Each accused is charged as a principal offender and there is a risk that the jury will impermissibly proceed on the basis that the two accused acted jointly in the commission of the offending;
(b) Having provided a document entitled the “Evidence Table” referring to 141 items of evidence, the prosecution has argued that 79 of these items are admissible against both accused, 55 admissible solely against Mrs Kannan, and 7 admissible solely against Mr Kannan;
(c) There is a substantial risk that the jury will use the evidence solely admissible against Mrs Kannan as evidence against Mr Kannan. It is submitted that any relevant judicial directions would be ineffective to counter the beguiling and irresistible effect of this body of evidence;
(d) If admitted, some of the evidence against Mrs Kannan would improperly bolster the weak case that currently exists against Mr Kannan, as the significant weight of that evidence is such that the jury will be unable to give effect to a separate consideration direction;[8] and,
(e) Judicial directions would be inordinately complicated.
[8]Young & Ors v R [2015] VSCA 265.
In submissions, counsel for Mr Kannan summarised and examined relevant aspects of the prosecution document entitled the “Evidence Table”, pointing to the pieces of evidence relevant and admissible solely against Mrs Kannan, thus either not relevant or admissible against Mr Kannan, or indirectly relevant against him. I have taken into account all of the evidence, and do not consider it necessary to go through it in detail in this ruling.
It is submitted that Mr Kannan would be deprived of a fair trial if tried jointly with Mrs Kannan for the following reasons:
(a) The evidence admissible against Mr Kannan is weak in comparison to the significant amount of evidence against Mrs Kannan, which is capable of implicating her in the commission of the alleged offences. For example, the evidence of the complainant being refused food and nourishment, her fear of being punished and the circumstances surrounding her admission to hospital are relevant and admissible against Mrs Kannan. As both accused are standing trial in relation to the exact same offences, it is submitted that there is a danger that the more egregious evidence against Mrs Kannan will be used impermissibly against Mr Kannan.
(b) The sheer volume of evidence against Mrs Kannan will swamp the case against Mr Kannan. Considering the matters contained in the “Evidence Table”, it was submitted on behalf of Mr Kannan that there is a preponderance of evidence sought to be led against Mrs Kannan and a relative dearth of evidence relied upon by the prosecution against Mr Kannan.
(c) Much of the evidence against Mrs Kannan is irrelevant and highly prejudicial to Mr Kannan’s interest in securing a fair trial, if tried jointly. Some of these allegations involve particularly egregious and extensive cruelty by Mrs Kannan against the complainant, including beating, cutting, pouring hot substances on her, locking her outside the house for hours and refusing to let her bathe. In oral submissions, it was submitted that the inflammatory nature of this evidence will likely provoke contempt and revulsion from the jury. It is noted that the prosecution seeks to lead some of this evidence against Mr Kannan, on the basis that he occasionally witnessed a number of these episodes, attempted to intervene on behalf of the complainant and offered to provide medication. The prosecution case is that this amounts to evidence of his control over the complainant, a matter which counsel for Mr Kannan dispute. It is further contended that because the cross-admissible evidence has manifestly different uses with respect to each accused, it will be notoriously difficult to provide directions to a jury.
(d) The evidence solely admissible against Mrs Kannan may impermissibly bolster the case against Mr Kannan. It is submitted that if the jury accepts the complainant’s evidence with respect to Mrs Kannan, her credit worthiness is enhanced with respect to other evidence which is cross-admissible or admissible solely against Mr Kannan. The defence case is that if the complainant’s credit is enhanced as a consequence of the jury’s acceptance of her evidence against Mrs Kannan, this will produce a real disadvantage in the joint trial to Mr Kannan. In this respect, it is contended that evidence which is inadmissible against Mr Kannan is improperly capable of enhancing the credibility of the complainant.
(e) There is a real danger that the jury will be unable to exclude the evidence admissible against Mrs Kannan from their consideration of the evidence against Mr Kannan. In oral submissions, counsel for Mr Kannan highlighted evidence sought to be led against both accused where the complainant had used the word ‘they’, despite clearly referring to Mrs Kannan, which included evidence that the complainant had been forced to work long hours and refused work breaks. It was submitted that the task of the jury in sifting through what is admissible against each accused becomes almost impossible in these circumstances, consequently producing an inescapable attraction of resorting to principles of complicity and making each accused responsible in a de facto way for the acts and declarations of the other.
(f) There is a risk that the jury will assume that Mr Kannan must have known of his wife’s alleged conduct, given their marriage and cohabitation in the same house. In oral submissions, it was contended that knowledge of what might be occurring, or even that knowledge that Mrs Kannan was possessing and using a slave, is irrelevant in the case against Mr Kannan, which is not one of accessorial liability.
(g) Whilst it is normally expected that juries will follow directions on separate consideration and the use of evidence, some cases are incapable of being cured by judicial direction. It is submitted that the present case falls in this category.
Counsel for Mr Kannan referred to the following remarks made by Nettle J in R v Iaria:[9]
Properly understood, the point which appears to me to come out of Waghorn is simply that where there is evidence which is admissible against one co-accused and inadmissible against the other, and the jury would find it difficult to exclude that evidence from consideration against the other accused, and it would be likely to strengthen the credibility of a critical witness against that other accused, and thereby turn what is a weak case against him into a strong one; it is likely to be seen that the co-accused has been so much deprived of a fair trial as to constitute a miscarriage of justice.
[9][2004] VSC 110.
Counsel for Mr Kannan also referred to a number of other authorities including R v Demirok,[10] R v Gibb & McKenzie,[11] R v Jones & Waghorn,[12] R v Oliver[13] and R v Alexander & McKenzie[14] and submitted that the following principles are relevant to its application for a separate trial:
[10][1976] VR 244.
[11][1983] 2 VR 155.
[12](1991) 55 A Crim R 159.
[13](1984) 57 ALR 543.
[14][2002] VSCA 183.
(a) The presumption of joinder is more readily rebuttable in the present case, which is not one of joint commission;
(b) The evidence against Mr Kannan is significantly different than that against Mrs Kannan;
(c) The case against Mr Kannan is weaker than that against Mrs Kannan, and likely to be impermissibly bolstered by material inadmissible in his trial;
(d) The scandal of inconsistent verdicts is not likely to arise to the point where a separate trial should not be granted, as the evidence against Mr Kannan is sufficiently different to that against Mrs Kannan to explain why different juries might reach different conclusions;
(e) There is a risk of positive injustice to Mr Kannan if there is a joint trial where it is not contended that the accused jointly committed the offences. Reasons for such risk include that highly prejudicial material against Mrs Kannan would be put before the jury in Mr Kannan’s trial; the complainant’s credibility will likely be impermissibly enhanced on his trial by this material; the weak case against Mr Kannan is therefore likely to be impermissibly elevated; and the significant volume of evidence against Mrs Kannan will likely overwhelm or swamp the case against Mr Kannan.
Further, counsel for Mr Kannan pointed to the case of R v Chami & Sheikh,[15] where there was concern that a high degree of prejudice would flow to one accused in a joint trial given the inflammatory nature of the allegations made against his co-accused. Counsel in Chami & Sheikh referred to R v Middis,[16] in which Hunt J identified the circumstances in which a separate trial would be appropriate, being where the evidence against the applicant is significantly weaker than and different to the evidence against the other accused; where the evidence contains material which is highly prejudicial though not admissible against the applicant; and where there is a real risk that the weaker case against the applicant will be immeasurably stronger because of the prejudicial material.
[15](2002) 128 A Crim R 428.
[16](Unreported, NSW Supreme Court, No 70412 of 1990, 27 March 1991).
Arguments for the prosecution
The prosecution submits there is substantial cross-admissibility of evidence between the two accused on the following bases:
(a) There is considerable overlap between the two indicted offences of possession and use of a slave.
(b) It is a common element to both offences that the complainant is in a condition of slavery.
(c) The conduct element of possession of a person is also conduct that can constitute the offence of using a slave, as the intentional exercising of physical control over a person is an indicia of exercising ownership.
(d) There is a single complainant alleged to be in a condition of slavery.
(e) The evidence of the complainant attributes the two accused as the persons who put her in a condition of slavery and possessed and used her as a slave.
(f) The complainant’s condition of slavery is largely confined to the house jointly occupied by both accused over almost a decade.
It is acknowledged that there is a larger amount of evidence against Mrs Kannan compared to Mr Kannan. However, the prosecution argues that determination of the application for a separate trial is not merely dependent on a comparison of the number of items admissible in evidence against each accused.
Further, it is submitted that the fact that the case against one accused in a joint trial is different or stronger than that against the other is not determinative as to whether a separate trial should be ordered. Rather, it is simply a factor to be taken into account in the exercise of the judicial discretion.[17] The Court held in Destanovic:
…the fact that the evidence against each accused differs, and may be stronger in the case of one than in the case of the other, is not of itself determinative as to whether a separate trial should be ordered. It is, however, a factor to be taken into account in the exercise of judicial discretion.
[17]Destanovic v The Queen; Tangaloa v The Queen [2015] VSCA 113 at [105].
The prosecution submits that the acts of physical and psychological abuse alleged against Mrs Kannan occurred in the house jointly occupied by the two accused. It points to evidence that Mr Kannan knew about occasions where his wife physically assaulted the complainant and tried to intervene, and that he generally knew about the complainant’s deteriorating health.
The prosecution relies on Mr Kannan’s knowledge of what was occurring in his home to assist in its overall circumstantial case that he intentionally possessed a slave and to the extent that it can be relevant in assisting the element of intentional possession or exercise of powers.
The prosecution contends that the deterioration of the complainant’s health would have been obvious to Mr Kannan, simply from living with her in the same house for between eight to ten years.
Further, it is submitted that any inadmissible evidence of mistreatment of the complainant by Mrs Kannan is not of such a nature as to be unfairly prejudicial to Mr Kannan, and can be alleviated by appropriate judicial directions. The prosecution referred to Kovacs v The Queen[18] as an example of a case in which a slave was held in a domestic setting, and the trial judge refused to grant a separate trial.
[18](2008) 192 A Crim R 345 at [49]–[53].
The prosecution submits there are strong public interest considerations militating in favour of a jointly held trial, which include the following:
(a) Most, if not nearly all, the VARE evidence of the complainant would be adduced in a separate trial;
(b) For the most part, the same evidence from the same witnesses would be adduced in a separate trial;
(c) Interstate witnesses will be required to travel for more than one trial, thus resulting in unnecessary additional costs;
(d) Any evidence only admissible against Mrs Kannan will be clearly identifiable and judicial directions can control or ameliorate any unfair prejudice to Mr Kannan;
(e) If there are separate trials, the complainant, who is a vulnerable adult witness, will endure two separate cross-examinations in front of two different juries;
(f) In the event there is a separate trial, the complainant will not be able to be excused after the conclusion of the first trial, but must await the conclusion of the second trial. I note that the complainant has now spent over 12 years in Australia since July 2007, and that she continues to live in isolation from her family, and friends;
(g) The complainant wishes to return home to India.
In oral submissions, the prosecution noted that the evidence alleged by counsel for Mr Kannan to impermissibly enhance the complainant’s credibility would not be put before the jury. In Kannan & Anor (Ruling No 6),[19] parties agreed that Question 59, being “is that how you got the scar on your leg? From hot water?”, will not be led to the jury. As such, the concerns raised by counsel for Mr Kannan regarding the complainant’s credibility being enhanced by such evidence is not applicable.
[19][2019] VSC 843R.
Further, the prosecution submitted that Hayne J in Tang[20] grappled with the concepts of ownership and powers attaching to the right of ownership.
The first step to take is to recognise that both the offence of possessing a slave, and the offence of exercising over a slave any of the powers attaching to the right of ownership, are cast in terms that appear to present two questions: first, did the accused possess, or exercise some other power attaching to the right of ownership over the complainant and second, was the complainant a slave? But the two questions merge.
The condition that must be proved is that the person meets the description as a “slave”. The offence is intentionally to possess a slave or intentionally to exercise over a slave any of certain powers. The condition of slavery (which is what provides the content of the term “a slave”) is defined as the condition of a person over whom any, or all of the powers attaching to the right of ownership are exercised. It thus follows that proof of the intentional exercise of any of the relevant powers over a person suffices to establish both that the victim is a slave and that the accused has done what the legislation prohibits.
[20]The Queen v Tang [2018] HCA 39 at [144]–[145].
The prosecution refers to the judgment of Hayne J as setting out the two elements of the offence, being, firstly, that the complainant is in a condition of slavery and, secondly, the accused has participated in particular conduct, intentionally possesses or intentionally exercises over the complainant any of the powers attaching to the right of ownership.
The prosecution submits that these two elements are present in the current matter, but concedes that there will be overlap in the evidence admissible against both accused.
Further, it submitted that when identifying the elements of the offences, the Code requires identification of a particular physical element and then a corresponding fault element. In Tang, it was held that possessing a slave and using a slave were examples of conduct satisfying the physical element, and that the corresponding fault element was intention.[21] Hayne J noted that the physical element of conduct could include a state of affairs and that a person has intention with respect to conduct if he or she means to engage in that conduct.
[21]R v Tang [2018] HCA 39 at [46].
Moreover, the prosecution emphasised the following:
Knowledge or belief is often relevant to intention. If, for example, it is the existence of a state of affairs that gives an act its criminal character, the proof of knowledge of that state of affairs ordinarily would be the best method of proving that an accused meant to engage in the prescribed conduct.[22]
[22]Ibid at [48].
It submitted that a person being in a condition of slavery results from the exercise of certain powers. Whether the powers exercised over a person are any or all of the powers attaching to the right of ownership is for a jury to decide in light of judicial directions as to the nature and extent of the powers that are capable of satisfying that description.
The prosecution also contended that it is not necessary to prove that Mr Kannan knew or believed that the complainant was a slave, or even that he was aware of what a slave was.[23] It asserts that evidence of Mr Kannan witnessing or being present when the complainant was not being allowed to sleep, working at all hours of the day and doing household chores may not be evidence that he directed such activities, but nonetheless is evidence that he observed this treatment, and was thus aware of the conditions in which Mrs Natarajan lived. The prosecution case is that such evidence is relevant in establishing that the complainant was in a condition of slavery and assists in establishing that Mr Kannan possessed and used the complainant as a slave, and did so intentionally.
[23]Ibid.
Further, the prosecution contends that evidence that Mr Kannan witnessed his wife’s cruelty to the complainant and responded with “Why are you doing this? Please stop”, as demonstrating he had the relevant knowledge of a person in a condition of slavery. It acknowledges that this example, along with that of Mr Kannan purchasing medication for the complainant, may cast Mr Kannan in a favourable light, but is nonetheless evidence of him possessing and exercising powers of ownership over the complainant.
The prosecution notes that the jury will hear evidence from Mr Nicholls relating to documents admissible against both accused, including letters written by Mr Kannan describing himself as a sponsor for the complainant, as going towards the overall context and circumstances of the alleged offending. In those letters, Mr Kannan provides that if a visa is granted, the complainant will reside in a household of a husband and wife with their three children. The jury will hear the details of the original applications, being that the complainant was said to be coming to Australia to assist with child care, and to provide help for Mrs Kannan.
The prosecution submits that evidence of the division of labour in the household shows that Mr Kannan was the primary “bread winner” and often worked at night, whilst Mrs Kannan was the primary carer of the children and homemaker. Given evidence of this division, it is submitted that the jury will be able to distinguish between the roles of each accused in respect of the evidence as it related to the natural flow of life in the household, as demonstrated in Kovacs.[24]Additionally, it contended that the jury can accept the cross-admissibility of this area of the evidence so that there is no prejudice to Mr Kannan.
[24](2008) 192 A Crim R 345.
The prosecution also referred to observations by Callanan and Heydon JJ in Ali v The Queen[25] to support its approach of considering the overall context and circumstances, including the way that the two accused arranged their household.
[25]ALJR 662 at [58].
The prosecution contends there is strong evidence of possession and exercising a power of ownership in relation to the two accused, including locking the complainant in their home whilst they went on their annual holiday to India. Whilst there is evidence that Mrs Kannan was responsible for sealing the windows, Mr Kannan would contact the complainant whilst in India and check in on whether anyone had come to the home.
Further, it was submitted that the complainant depended upon the two accused for everyday staples, including food and clothing, and had no ability to buy anything personal for herself. When she arrived from India in 2007, the complainant possessed one bag, which only held a couple of nightdresses. Over her time in Australia, she was provided with a few saris, which the prosecution argues is an indicia of the control which the accused had over her circumstances.
Thus the prosecution submits that the application for a separate trial for Mr Kannan should not be granted.
Conclusions
In broad terms, the case to be put against Mr Kannan includes the following areas of evidence:
(a) His involvement in the visa application process that brought the complainant to Australia, wherein he described himself as a ‘sponsor’;
(b) The lengthy period in which the complainant was living in the household under the control and supervision of both accused, Mr Kannan’s knowledge of the circumstances of her condition of slavery, and his acceptance of the benefits of the complainant’s role as a domestic worker;
(c) Relevant facts and circumstances that occurred during the period described immediately above; and,
(d) His lies to Sergeant Keenan about the complainant, once it was established by the authorities that the complainant was present at the Box Hill Hospital under a false name.
Further, as discussed above, the evidence argued by the prosecution to be admissible against both accused is identified in a document entitled the ‘Evidence Table’. The document provides a comprehensive breakdown of the prosecution’s evidence, including an analysis of the complainant’s evidence as set out in the 6 VARE recordings, as well as other witnesses to be called in the trial. I have carefully examined that document, and am aware of the evidence to be adduced from other witnesses.
In resolving the present application, it is to be kept firmly in mind that the prosecution proposes to put its case against the two accused separately, and not as one of joint commission pursuant to s 11.2A of the Code. Accordingly, the case is not to be argued on the basis that the two accused entered into an agreement to commit the offences, and committed an offence or offences jointly in accordance with such agreement. As such, the issue arises as to what consequences the approach taken by the prosecution might have on the resolution of the current separate trial application by Mr Kannan.
On the holding of a joint trial, appropriate directions as to separate consideration of the cases against each accused will be provided to the jury. Is there risk to an unacceptable degree that such directions would not be followed in this case? For the reasons discussed below I do not think so.
The accused are a married couple who lived together in a household where the complainant also lived and worked on a virtually continual basis for the intended betterment of the whole Kannan family over a period approaching a decade.
I agree with the prosecution submission that there are strong public interest considerations militating in favour of a jointly held trial. As observed in many past decisions there is significant public interest in one jury deciding the outcomes of the cases brought against jointly indicted accused. In the circumstances where the accused home, jointly occupied, is the setting where these particular offences are alleged to have been committed, I consider to be a strong factors in favour of holding a joint trial.
There are countervailing factors which must be taken into account in the exercise of this discretion. Mr Kannan argues a number of features of the case call for a separate trial for his client on the basis he cannot receive a fair trial if the trial is held jointly. These matters have been identified in detail above.
Firstly, a significant matter for consideration is whether the comparative difference in the weight and scale of the evidence admissible against Mrs Kannan, compared to the evidence properly admissible against her husband, contributes to presenting such unfairness against him so as to warrant a separate trial being ordered.
In short, Mr Kannan places significant emphasis on what is said to be an overwhelming amount and weight of evidence admissible against his wife, compared to the lesser scale of the evidence admissible against him. It was pointed out that in summarising the ‘Evidence Table’, that 79 items of evidence are argued by the prosecution to be admissible against both accused, 55 are admissible solely against Mrs Kannan, as against there being 7 items admissible solely against Mr Kannan. In passing, it should be noted that a simple numerical count of comparative numbers of pieces of evidence has limitations in establishing the point argued for. As well as the amount, the nature of the evidence under consideration is also of relevance.
In this regard Mr Kannan argues that some of the evidence admissible solely against Mrs Kannan bears a particularly egregious quality, which is capable of reflecting adversely, and unfairly, against Mr Kannan. For example, the prosecution alleges that on occasions Mrs Kannan physically abused Mrs Natarajan, that Mrs Natarajan eventually became gravely unwell, and that subsequently, Mrs Kannan is alleged to have told multiple lies to ambulance and hospital staff, as well as the police. It is submitted that these examples of circumstances inadmissible against Mr Kannan add weight to the argument for a separate trial on the basis that the jury would be improperly influenced against Mr Kannan such as to render him an unfair trial.
Emphasis was also placed on the fact the prosecution is not indicting the two accused on the basis of their joint commission of the two alleged offences, but on the basis that each committed the offences separately, in the absence of an agreement to do so. Thus, it will not be argued that there existed an agreement that might have meant that a significantly larger body of evidence might be admissible against Mr Kannan. For instance, it cannot be argued that any alleged abuse of the complainant might be part of any such agreement, or that an agreement might have included telling lies to the police, or others, by Mrs Kannan.
With the above recognised, and as previously noted, there is a body of evidence that is admissible against both accused, as well bodies of evidence against each accused separately. It is acknowledged by the prosecution that there is significantly more evidence solely admissible against Mrs Kannan than her husband. But, as observed by itself, the weight of the disparity in evidence is not necessarily determinative, albeit a matter to be taken into account in determining whether to exercise a discretion to order separation of one trial from the other. It is to be noted that the body of admissible evidence against Mr Kannan, as well as Mrs Kannan is substantial.
In some cases, as well as the disparity in the amount and nature of the evidence, there may be some other feature of the case that pushes the circumstances over the line so as to result in separation of trials being ordered. As well as pointing out the egregious quality of some of the evidence admissible against Mrs Kannan, Mr Kannan argues that the overall circumstances risk an impermissible enhancement of the credibility of the complainant by the use of evidence inadmissible against him.
In my opinion the possibility of alleged egregious conduct by a co-accused against a complainant, and possible credibility enhancement of that complainant, exists in many jointly prosecuted cases, whether they be joint commission cases, or not. In all the circumstances that I am currently aware of, I do not regard these matters separately, or in combination, represent a serious risk of unfairness against Mr Kannan. I am unable to accept that there is a significant risk that allegations of poor behaviour and lies on the part of Mrs Kannan, as well as other evidence that is admissible solely against her, unfairly prejudices Mr Kannan. Further, it does not seem to me that the evidence admissible against Mrs Kannan solely, asserts any bad character on the part of Mr Kannan, a feature often appearing in past decided cases. Further, I do not consider the risk of impermissible credibility enhancement of the complainant to be significant to the point that it becomes problematic.
With respect to the way in which the cases are to be put, I am not convinced that the fact the cases will be put against each separately as against each accused is of itself determinative of this application. However, I accept that it is a matter to be taken into account, and I have done so. That stated, in cases involving the indictment of multiple accused, even if the case is put on the basis of joint commission, juries are clearly instructed to act on the basis of the evidence properly admissible against each accused. It seems to me that this is a fundamental proposition, and juries are constantly required to act only on the basis of evidence properly admissible against each and any accused. In such cases, as it will be in this case, it is the duty of the prosecution to clearly identify the evidence it asserts is admissible against each accused, as it presents and identifies the parameters of its two cases. There is no reason to conclude that the prosecution will fail in that duty in the present case. Furthermore, the jury will receive standard directions from an early stage of the case that the cases against each accused must be considered separately, and that the evidence in relation to each of the two charges on the indictment will also be considered separately.
In my opinion, there is no reason to conclude the jury will not act on directions to assess the evidence admissible against each accused separately. I do not conclude that the requirement to assess the cases separately as against each accused stands in the way of achieving a fair trial for Mr Kannan. In my opinion the jury can be appropriately directed to assess the cases separately without the risk that it will act impermissibly to improperly use inadmissible evidence in the way suggested by Mr Kannan.
It is relevant to note that having become closely acquainted with the issues in the trial against the two accused, whilst acknowledging the differential in the nature and scale of the evidence against each of them, I have not perceived that either accused will advance defences that seek to blame the other. I have not detected that there any significant evidence emerging from within the prosecution case which would appear to support the likelihood of a ‘cut-throat’ defence emerging between them. For instance, compared to that seen in some joint-indictment cases, there is no record of interview, or other evidence, solely admissible against one accused, that appears to implicate or otherwise blame the other accused in the commission of the alleged offences. Depending on the issues and evidence in other cases, the existence of cut-throat defences, or existence of assertions of bad character by one accused against the other, can be telling considerations in favour of separation, or not. These do not seem to me to be significant factors that exist in the present case.
It is important to consider that in the assessment of countervailing factors weighing in favour or against separate trials is whether appropriate judicial directions can ameliorate any risk that the jury may impermissibly use evidence against Mr Kannan which is not admissible against him, and solely admissible against his wife. In resolving this application it becomes a significant consideration.
It is accepted that a feature of joint trials can and often does involve the jury hearing material about a co-accused which is inadmissible against, and capable of being prejudicial to another accused. It is frequently accepted that a number of countervailing interests, as stated above, results in an acceptance of such risks. It is accepted that appropriate judicial directions can ameliorate any risk to an acceptable level to ensure an accused will receive a fair trial.
This case is not one in which a co-accused has implicated another in having committed the alleged crime. Rather, the case is one where the evidence weighs more heavily against one accused, being Mrs Kannan. Further, there are allegations of cruelty against her, but not against Mr Kannan. Counsel for Mr Kannan argues that this reflects badly on him, and gives rise to a risk that the jury will use that evidence impermissibly against him. It is also submitted that there is other evidence against Mrs Kannan that, if used impermissibly, risks strengthening an arguably weak case against Mr Kannan.
In my opinion, it cannot be said that there is a weak case against Mr Kannan. While there is certainly more evidence to be led against Mrs Kannan, that of itself does not render the case against Mr Kannan a weak one.
As above, the principle relevant to the interpretation of s 193(3) of the Act, is that there must be substantial prejudice to an accused from a jointly held trial and that such prejudice cannot be nullified by appropriate judicial directions, must be considered.[26]
[26]Mwamba v R [2015] VSCA 338, [24].
Is the inadmissible evidence so prejudicial that a fair trial cannot be held for Mr Kannan? I am not of the opinion that it is. Past decisions and experience indicates that, in some cases, the risk of an unfair trial cannot be overcome by judicial directions, thereby resulting in a separate trial being ordered. I do not think that is the case here, and nor do I consider that any combination of factors considered together, establish any features that push the risk of unfairness over the line of acceptability.
As well as being well familiar with the facts and issues in this case, I have examined a number of past decisions which have involved a feature or combination of features that pushed the risk beyond an acceptable limit. As stated, the present is not such a case. Accordingly, I do not consider that any particular features of the evidence, or the issues, by themselves or in combination, contribute to a level of unfairness to Mr Kannan that cannot be accommodated by separate consideration directions. In short, there is no reason to think that directions that the case against each accused must be considered separately will not be followed. As explained in Mwamba, ‘Our system of criminal justice must operate on the assumption that, as a general rule, juries will understand and follow directions given to them by trial judges. And the experience of the Court is that juries do adhere to directions to consider the case of co-accused separately, and only in light of the evidence admissible in the case of each’.[27]
[27]Ibid at [44].
I do not accept the submission for Mr Kannan that the directions to be given to ensure separate consideration will be complex to the point that makes the task impossible. I accept, nevertheless, that the volume of the evidence in the trial is substantial and that the jury will require assistance and clarity in setting out the evidence against each accused, and particularly so from the prosecution.
Furthermore, the scale and weight of the evidence against Mrs Kannan, which the jury will hear and see, is not such that it will overwhelm their proper consideration of the case against Mr Kannan. It is my opinion that the jury can fairly discriminate the evidence against him and give improper consideration to the evidence solely admissible against Mrs Kannan.
For the foregoing reasons I am of the opinion that Mr Kannan can have a fair trial if jointly indicted with his wife. Accordingly, having balanced all the relevant factors, I conclude that the application for a separate trial should not be granted.
The application is refused.
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