R v Kannan (Ruling No 14) - [2020] VSC 822

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:	20-31 July 2020
DATE OF JUDGMENT:	7 December 2020
CASE MAY BE CITED AS:	R v Kannan & Anor (Ruling No 14)
MEDIUM NEUTRAL CITATION:	[2020] VSC 822

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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 intention to adduce previous representations of a deceased witness – Evidence not admissible as hearsay – Evidence admissible on a non-hearsay basis – Application to exclude pursuant to s 137 refused - Evidence Act 2008.

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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 prosecution has given notice pursuant to s 67 Evidence Act 2008 (‘EA’) of an intention to adduce evidence of previous representations made by N. Jawahar Krishnan (‘the representor’). The representor was the son-in-law of Rajalakshmi Natarajan (‘the complainant’). As discussed in Re Kannan (Ruling No 10),[1] (‘Ruling 10’), it is not in issue that the representor died on 22 September 2019 or disputed he is unavailable to give evidence in the trial as set out in s 65(1) EA.
[1][2020] VSC 91R.

Preliminary matter

In Ruling 10, I concluded that the previous representations made by the representor on 24 September 2015 were admissible against the first accused, Kumuthini Kannan (‘Mrs Kannan’) and inadmissible against the second accused, Kandasamy Kannan (‘Mr Kannan’). On 22 July 2020, the prosecution referred the Court to transcript references from earlier preliminary argument in February 2020, which indicated the parties had sought to defer submissions on this issue in an attempt to narrow the scope of argument. It was pointed out that full submissions had not been made as to the admissibility of the representations against Mr Kannan before Ruling 10 was handed down.

The prosecution now seeks the opportunity to address arguments on this issue, which includes advancing arguments for the relevant representations to be admitted against Mr Kannan. It is submitted there are no legal impediments to this Court revisiting Ruling 10 and the issues of admissibility, referring to the cases of Rodgers v The Queen,[2] Minerology Pty Ltd v Sino Iron Pty Lyd,[3] and R v Cornell.[4]
[2](1994) 181 CLR 251.
[3][2016] WASCA 105.
[4][2015] NSWCCA 258.

Counsel for Mr Kannan accept that the transcript appears to indicate the absence of full argument on this issue. Nonetheless, it submitted that the prosecution bears the burden of satisfying the Court that it…

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 14)

Details

AGLC: R v Kannan (Ruling No 14) [2020] VSC 822
Case: [2020] VSC 822
Decision Date: 7 December 2020

CaseChat Overview and Summary

The matter before the court involved a ruling in a criminal case where the defendant, Kannan, was charged with offences under the Criminal Code Act 1995. The charges related to the intentional possession of a slave and the exercise of ownership powers over a slave. The case was heard in the Supreme Court of Victoria. The prosecution sought to introduce evidence from a deceased witness through a previous statement. The primary legal issue the court had to address was whether this evidence was admissible under the Evidence Act 2008.

The court considered the admissibility of the deceased witness's statement, which was initially intended to be introduced as hearsay. However, the prosecution argued that the evidence could be admitted on a non-hearsay basis. The court found that the statement could be considered as direct evidence of the deceased's state of mind and intention at the relevant time, thereby qualifying for an exception under the Evidence Act 2008. The court ruled that the evidence was admissible and rejected the application to exclude it under section 137 of the Evidence Act 2008.

Given the admissibility of the evidence, the court allowed the prosecution to proceed with the use of the deceased witness's statement in the trial. This decision was based on the court's interpretation that the statement was not hearsay because it was not being used to prove the truth of the matter asserted but rather to demonstrate the deceased's state of mind or intention. Consequently, the court's ruling ensured that the evidence would form part of the prosecution's case against the defendant.

Orders