R v Kannan (Ruling No 14)
[2020] VSC 822
•7 December 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 |
---
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 is now appropriate in all the circumstances to revisit Ruling 10. It noted that, on its face, Ruling 10 had determined that the evidence of the representor was inadmissible against Mr Kannan.
I note Ruling 10 focused on the impact of the unavailability of the representor and addressed the admissibility of aspects of his evidence other than the conversations of 24 September 2015, including the documentary evidence he produced and his viva voce evidence at the committal proceedings. It is not necessary to revisit those matters, and insofar as they remain of relevance to this ruling, they remain applicable. As such, this ruling should be read, in part, with Ruling 10.
The transcript references provided by the prosecution correctly identify that the ruling was delivered in circumstances where the parties had deferred addressing full argument. Noting that counsel for Mr Kannan did not provide transcript references suggesting otherwise, it is plainly evident that the parties did not take full opportunity to address this particular issue. Accordingly, as a matter of fairness, I determine that this aspect of Ruling 10 may be revisited.
I am satisfied that Ruling 10 does not fall into the category of a final decision and is susceptible of recall during this pre-trial phase of the case. I am not of the opinion that either accused will suffer prejudice as a result of hearing further argument and revisiting the relevant aspects of that ruling.
Evidence sought to be led
The representations sought to be adduced by the prosecution can be placed into two broad categories, namely:
(a) Statements made by the representor over speaker-telephone on 24 September 2015 to officers of the Department of Immigration and Border Patrol, Shivanthi Siva and Samanthi Fernandez; and
(b) Statements made by the representor during the telephone conversation on 24 September 2015 with the complainant, in the presence of, and overheard by, Siva and Fernandez.
It is apparent that only one telephone connection took place. The conversation began with the representor speaking with Siva and Fernandez, before he spoke directly to the complainant, with Siva and Fernandez overhearing that conversation.
Arising from these conversations, the prosecution seeks to lead evidence of the following 11 representations made by the representor:[5]
[5]As submissions evolved, the prosecution deleted various portions of the representations. However, by the conclusion of preliminary argument on this issue, the prosecution resiled from those concessions and sought to adduce the representations indicated above.
(a) From the conversation between the representor, Siva and Fernandez, that:
(i) The representor’s wife was frequently in contact with the complainant;
(ii) On the last occasion, the complainant was significantly unwell and was unable to articulate words which caused them concern;
(iii) The family then contacted Mrs Kannan and were verbally abused;
(iv) The family had requested the return of the complainant to which they responded they would need to pay the ticket if they wished for her return;
(v) The initial agreement had been for the complainant to assist Mrs Kannan and her family for five years and subsequently be returned to India;
(vi) After the agreed period, every request to have her returned was met with similar abuse (they would be verbally abused)
(vii) When asked about the nature of the agreement between the family and Mrs Kannan, the representor said he did not care about the money but wished for the complainant to be returned.
(b) From the conversation between the representor and the complainant, that:
(i) There was a financial agreement with the Kannans for the last eight years where 8,000 rupees was to be paid per month;
(ii) The only payments received were in the amounts of 30,000 rupees, 15,000 rupees and 10,000 rupees;
(iii) The representor had asked Mrs Kannan about the money, however he was verbally abused;
(iv) The representor declared that he only wanted his mother-in-law home and was no longer concerned about the money.
For the sake of clarity, the statements or representations sought to be led are those attributable to the representor.
As discussed below, the prosecution submits that the representations are admissible on both a hearsay and non-hearsay basis. It is to be noted that the prosecution submissions with respect to hearsay relate only to Mr Kannan,[6] while those seeking to adduce the representations on a non-hearsay basis are advanced against both accused.
[6]This issue was resolved in respect of Mrs Kannan in Re Kannan & Anor (Ruling No 10).
Prosecution submissions
The prosecution made oral submissions, in addition to providing the Court with three sets of written submissions, aspects of which are relevantly summarised below.
The issue of relevance
The prosecution submits that all representations are relevant to the proof of the charges in the indictment, on account of the following reasons:
(a) As proof of an element of the offences, namely the criteria of lack of remuneration for work performed as a condition of slavery;
(b) The context and timing of the complainant’s initial complaint to immigration officers and the police;
(c) The context in which the representor made the representations; and
(d) In order to establish the true nature of the relationship between the complainant and the two accused, and whether it was one as between master and slave.
Firstly, it is submitted that the principal relevance of the representations about the agreed salary and payments actually made is to the absence of adequate remuneration for the work performed by the complainant for both accused, being a criterion going towards establishing the existence of a condition of slavery. It is submitted that such representations are highly relevant to the trial of both accused.
The prosecution contends that it can be inferred from all the available evidence that the agreement for the complainant to perform domestic work at the accused’s family home was struck between the representor and Mrs Kannan, with any payments for the complainant’s work to be made to the representor. As such, it is submitted that the representor was acting as the complainant’s agent in respect of the agreement and receipt of payments, as the complainant was not a party to those conversations. It is contended that she was, nonetheless, a party to that agreement.
The prosecution acknowledges there is no evidence that Mr Kannan was a party to the conversations that established the financial arrangements, nor is there evidence of his direct involvement in payments for the work performed. It is also acknowledged that the representations are expressed in terms that indicate that the financial arrangements were managed by Mrs Kannan. Nonetheless, it is contended that Mr Kannan was a party to the agreement, as the work agreed to be, and in fact, performed by the complainant, occurred at his family home over many years.
While noting that it does not seek to rely on common purpose in respect of the criminal responsibility of the two accused, the prosecution submits that the evidence establishes that Mrs Kannan acted as Mr Kannan’s agent in relation to the initial work agreement. Relying on s 87(1)(c) EA, it submitted it is reasonably open to find that the representations made by Mrs Kannan regarding the salary to be paid to the complainant were made in furtherance of a common purpose she had with her husband to secure the complainant’s services as a domestic servant. Thereby, it is contended that the representations amount to admissions by Mrs Kannan that are in turn admissible against Mr Kannan. The prosecution notes that the evidence of Mr Kannan’s role in arranging for the complainant’s authority to enter Australia adds weight to this argument.
In oral argument, the prosecution sought to extend the above submission by arguing that the representations concerning the financial agreement also fall within the scope of s 87(1)(a) or 87(1)(b) EA, which encompass circumstances where admissions are made with authority. It was submitted that in Commonwealth of Australia v Helicopter Resources Pty Ltd,[7] the High Court departed from the common law by extending the range of agents whose representations may be treated as admissions against their principals beyond the employment relationship. Relying on this broader concept of authority, the prosecution submitted that the representations made by Mrs Kannan to the representor can be taken to have been made by Mrs Kannan within the scope of her husband’s authority given the surrounding circumstances, including his role in orchestrating the complainant’s arrival in Australia, his statements to the authorities that he would look after the her financial wellbeing, the fact that the complainant lived and worked within his family household, the division of responsibilities within that household, and the fact that he also benefited from the complainant’s services.
[7][2020] HCA 16 at paragraph [18].
Secondly, the prosecution contends that the representor’s statements about the agreed salary and payments made are also highly relevant to the complainant’s credibility, particularly relating to the timing of her complaint about the alleged slave conditions in which she lived and worked. It is acknowledged that the complainant had not sought to escape from the accused’s house, in which she now alleges she was held as a prisoner for over eight years. Further, until her conversation with the representor on 24 September 2015, she had made no complaint to anyone about her treatment by either the accused.
The prosecution intends to submit to the jury that it is open for it to draw the inference that an important reason for the absence of a complaint until that time was that the complainant had been deliberately isolated and unaware her family had received little of the salary promised under the work arrangement. It is contended that such an inference is open on all of the evidence, including observations made by both Siva and Fernandez at the time of the complainant’s conversation with the representor.[8] As such, the prosecution argues that the representations are an important and interconnected part of the circumstantial evidence which explains why the complainant made her complaint at the time that she did, and is highly supportive of the truthfulness of her account.
[8]These observations are noted in the Prosecution Outline of Submissions – Previous Representations made by Jawahar Krishnan during 24 September 2015 Telephone Conversations dated 8 July 2020.
Thirdly, the prosecution submits that the representor’s statements about the financial arrangements and payments made occurred in the context of his further representation that he had asked Mrs Kannan for payment of the agreed salary, but was refused and verbally abused by her. It is contended that he eschewed any claim in those monies by declaring that he merely wanted the complainant’s return to India. The prosecution submits that the reliability of all these representations is highly probable in the context of the conduct and representations of the representor around this time, including his letters to the Australian High Commission in New Delhi and the Indian Consulate in Melbourne. It is pointed out that none of the letters mention the representor seeking compensation for the salary that should have been paid under the agreement.
It is also submitted that the representations where the representor eschews any claim to the monies owed to the complainant also undermines and rebuts any suggestion that his complaints to various government agencies were part of a plan to extract money from the accused.
Finally, on the question of relevance, the prosecution submits that the representations about the financial agreement and lack of payment are also relevant to determining the true nature of the relationship between the complainant and accused. It is contended that the representation that there was an agreement for the complainant to be paid a monthly salary rebuts representations made by Mr Kannan to the Australian High Commission in India when obtaining a visa on her behalf, namely that their relationship with her was one of a beloved family member. It is submitted that the representation about the lack of payments is relevant to establishing that the relationship was not one of a typical employee and employer, but rather one between a slave and her masters.
The issue of probative value
Relying on its submissions with respect to relevance, the prosecution contends that the representations amount to highly probative pieces of evidence establishing an element of the slavery offences, namely the lack of remuneration for work performed; the context and timing of the complainant’s complaint; the context in which the representor made the representations; and the true nature of the relationship between the complainant and accused. It is further submitted that the probative value of these representations outweighs any unfair prejudice to the accused in admitting that evidence.
Further, the prosecution responded to arguments for the accused that it is highly unlikely the representations are reliable due to a lack of accuracy in the interpretation of the conversations and failure to record what was interpreted. The defence submission was that this would result in unfair prejudice upon the accused which cannot be alleviated by judicial directions. In rebuttal, the prosecution relied on the following factors:
(a) The interpreter was a qualified interpreter, who has provided a statement.[9]
[9]Statement of Leslie Kuddithamby sworn 2 March 2018, Notice of Additional Evidence dated 7 August 2019.
(b) The same interpreter was used by the AFP in its audio recorded conversation with the complainant following the phone conversations with the representor on 24 September 2015. It is noted that the parties, having reviewed the interpretations made and recorded during that conversation, identified only a few agreed changes to the original interpretation.
(c) There were four Tamil speakers present during the telephone conversations, being the representor, interpreter, complainant and Siva. It is noted that nothing in Siva’s account of the conversation calls into question the accuracy of the interpretations. The prosecution contends that her account of the representations as interpreted into English is substantially the same as that of her English-speaking colleague, Fernandez.
(d) The complainant’s conduct following the conversation confirms, and is consistent with, the accuracy of Siva’s account of representations by the representor about the financial agreement and actual payments made. Further, that the complainant had no direct involvement in the arrangements to bring her out to Australia and that her payment were made to the representor is consistent with her evidence in her VARES.
(e) All persons present during the phone conversations on 24 September 2015, except for the interpreter, gave evidence at the committal and were cross-examined by counsel for each accused. It is noted that none were cross-examined specifically about the phone conversations on that date. The prosecution notes that the complainant is still available to be cross-examined about the conversations and that the defence would not be in a worse position, even if the representor was still available to give evidence of the conversation occurring five years ago based on his recollection alone.
(f) The contemporaneous notes of Siva and Fernandez provide a record of the Tamil conversation that was interpreted into English. Their contemporaneous combined notes formed the basis of their statements to the police. The evidence of Siva and Fernandez is also substantially consistent with the statement of Popi Bisas, who also recorded the representations on the financial agreement and payments made.
In the circumstances outlined above, the prosecution submits that the accuracy of the unrecorded conversations in Tamil do not amount to an unfair prejudice to the accused. Even if they are regarded as such, it is submitted that the probative value of the evidence far outweighs any unfair prejudice and as such, should be admitted into evidence against both accused. I shall address this issue below.
Submissions on hearsay
The prosecution submits that each of the representations sought to be adduced were made within the knowledge and involvement of the representor, thus being admissible under s 65(2) EA.[10] It is submitted that each representation constitutes first-hand hearsay.
[10]As an exception to the hearsay rule contained in s 59 EA.
In support of the above argument, it is submitted that each representation made to Siva and Fernandez were made in circumstances that make it highly probable that they are reliable, thus being admissible under s 65(2)(c) EA. In this respect, the prosecution points to the following factors:
(a) Siva and Fernandez spoke to the representor after attending the hospital where the complainant was being treated. The circumstances in which they came to speak to the representor were as follows:
(v) They attended the hospital following contact made by Victoria Police on 15 September 2015, advising them that the complainant was an illegal immigrant.
(vi) By that time, Sergeant Carl Keenan of Victoria Police had discovered the location of the complainant. He had been conducting a welfare check on her and had attended the accused’s home in August 2015, following letters sent to the Indian Consulate in Melbourne from the representor and his wife (the complainant’s daughter) and an Indian member of Parliament.
(vii) The complainant had been at the hospital since 30 July 2015, after collapsing at the accused’s home and taken to the hospital with life threatening health conditions.
(viii) The complainant refused to speak to Siva and Fernandez without the permission of Mrs Kannan, but consented to them speaking to a family member, namely the representor.
(b) The content of the conversation is similar to, and elaborates on, the content of the representor’s letter to the Australian High Commission in New Delhi on 8 August 2015, particularly that he was concerned about the health of the complainant and requested her return to India.
(c) Contact with the representor had not been prearranged by Siva and Fernandez and had not been made via the Department’s office in the Australian High Commission in New Delhi.
(d) The representor was unaware of the complainant’s admission to hospital on 20 July 2015.
(e) The content of the conversation is consistent with the representor’s affidavits sworn or affirmed on 13 April 2017, and his evidence in cross-examination at the committal of the accused on 13 December 2017 and 7 February 2018.
(f) The representations in the conversations and other documents, which were interpreted from Tamil to English, are consistent notwithstanding the use of different translators or interpreters.
The prosecution also contends that the representations made to the complainant are admissible pursuant to s 65(2)(c) and 65(2)(d) EA, on account of the following:
(a) The representations were made against the interests of the representor at the time they were made, as he simultaneously withdrew any claim he might have had against the accused for the complainant’s work. Further, by requesting the return of the complainant to India, he imposed a financial burden upon himself to care for her in her current poor condition of health.[11]
[11]Definition of ‘admission against interest’ – 65(2)(d)(i), 66(7) EA.
(b) The representations were made in circumstances that make it highly likely that they are reliable, namely:
(ix)This was the first occasion that the representor had spoken to the complainant since she had been admitted to hospital on 30 July 2015, after he had sent letters to the Australian High Commission in New Delhi and the Indian Consulate in Melbourne in August 2015, expressing his concern about her health and welfare.
(x) The previous representations were made at about the same time as his letters and email, which only enquired as to the health and welfare of the complainant and sought her return to India.
(xi)The representations were made prior to the representor alleging that the accused had sought to have him withdraw his complaints in October 2015. They are consistent with his denials in his cross-examination at the committal that he did not make these complaints to obtain money from the accused.
(xii) The representation was made to the complainant and informed her that apart from certain sums of money, none of the agreed payments (of 8,000 rupees a month) had been paid, causing the complainant to become emotional and distressed that the sacrifices she had made by working for the accused in Australia for over eight years had been in vain.
During the course of argument, the prosecution indicated an intention to call Siva and Fernandez to give direct evidence of the conversations that they participated in and overheard, using their contemporaneous notes to refresh their memories. It was submitted that, in adducing the representations in this manner, the representations would constitute first-hand hearsay on the basis that the interpreter acted as a pure conduit in translating the words spoken by the representor. Relying on the cases of Gaio v The Queen,[12] and DPP v BB and QN,[13] it was submitted that the interpreter’s involvement as a conduit does not change the nature of the hearsay.
[12](1960) 104 CLR 419.
[13][2010] VSCA 211.
Alternatively, it was submitted that as Siva and the interpreter were both Tamil-speaking persons and understood the representations themselves, their evidence of the representor’s statements constitute first-hand hearsay.
The prosecution noted that its primary position was that all representations set out above are admissible against Mr Kannan. It submitted that the Court may consider other evidence which will be heard by the jury in its task of determining admissibility. Using the representation about the financial agreement as an example, the prosecution pointed to the evidence of Ben Nicholls and the various letters and applications by Mr Kannan to obtain a visa for the complainant as being of relevance.
Further, the prosecution advances two alternative bases for the admissibility of representations (a)(vii) and (b)(iv), in which the representor declared he did not want money and just wanted the complainant to return. Firstly, it relies on 66A EA, submitting that the hearsay rule does not apply to these representations as they constitute contemporaneous representations about the representor’s feelings, intention or state of mind. It is contended that the representations are relevant given that there will be evidence before the jury of an opposing motivation, namely that the representor orchestrated the complaint against the accused to obtain money.
Alternatively, the prosecution submits that representations (a)(vii) and (b)(iv) are admissible under s 108A EA, as going to the credibility of the person who made the previous representations. Noting that the representor is unavailable to give evidence at the trial, it is contended that the representations could substantially affect the assessment of his credibility in respect of other representations he has made which will go before the jury.
Submissions on non-hearsay purpose
The prosecution submits that whether out of court representations amount to hearsay and are subject to the exclusionary rule in s 59 EA depends on the use sought to be made of the evidence.[14] As such, as an alternative basis, it seeks to adduce the representations outlined above for a non-hearsay purpose.
[14]Papakosmas v R [1999] 196 CLR 297 at [24].
Referring to s 59 EA, it is submitted that evidence of a previous representation that is adduced for a reason other than to prove the truth of the fact asserted in the representation is not caught by the hearsay rule. The prosecution contends that the representations sought to be led constitute examples of ‘original evidence’ relevant to proving the elements of the offences and as part of the circumstantial cases against both accused. Relying on this basis, it is submitted that evidence of the representations are not caught by the hearsay rule, as they can be adduced for a reason other than to prove the truth of the facts asserted in them.
Reference was made to a number of authorities supporting the potential dual purpose of out of court statements. In Pollitt,[15] Brennan J stated:
Evidence of an out-of-court statement may tend to establish a fact to be proved either because that fact is asserted by the maker of the statement and the maker of the statement is to be believed to have made the statement truthfully – in which case the evidence is hearsay – or because the making of the statement is itself the fact to be proved, or when taken together with other facts established by evidence or common experience, tends to establish the fact to be proved – in which case the evidence is original evidence.[16]
[15]Pollitt v The Queen (1992) 174 CLR 558.
[16]Ibid per Brennan J at paragraph [3].
Similarly, in Ahern,[17] the High Court referred to the same type of evidence with the terminology adopted in the United States, being ‘verbal acts’.[18] Further, in Papakosmas,[19] Gaudron and Kirby JJ considered the Evidence Act 1995 (NSW) and stated the following:
… the common law does not exclude all evidence of statements made outside court. If relevant, evidence is admissible to prove that a statement was made and, also, to prove its contents. And from that evidence, inferences may be drawn. Commonly, inferences may be drawn as to the speaker’s intention, emotion, or knowledge of or belief in the facts stated.[20]
Further, evidence that a statement was made may counter an inference that could otherwise be drawn. Thus, the common law permits evidence of early complaint in sexual cases to counter an adverse inference that might be drawn with respect to the complainant’s credit…[21]
[17]Ahern v The Queen (1988) 165 CLR 87.
[18]Ibid at paragraph [94].
[19]Papakosmas v The Queen [1999] 196 CLR 297.
[20]Ibid at paragraph [48].
[21]Ibid at paragraph [49].
The prosecution submits that s 60 EA recognises that evidence can be lead for a non-hearsay purpose, and provides that ‘the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact’. It referred to Li v R,[22] where evidence of telephone discussions between two persons, not involving the accused, were not admitted as hearsay evidence but for the non-hearsay purposes of establishing what the two men were talking about, namely the existence of money and that the money belonged to a particular person. The appellate court found no error in admitting the evidence for that purpose, stating that it allowed the jury to draw inferences concerning the money.
[22]Li v The Queen (2010) 265 ALR 445.
It is submitted that the EA has not eliminated the concept of evidence for a non-hearsay purpose, but rather s 60(1) EA has changed the common law position, which previously stood for the proposition that when evidence was admitted for a particular purpose, its use was limited to that purpose. It is contended that, pursuant to s 60(1) EA, a previous representation admitted for a non-hearsay purpose is prima facie now admissible for all purposes, including a hearsay purpose. It is noted, however, that depending on the circumstances, a court may issue a direction under s 136 EA to limit the use that can be made of such evidence.
There are two bases upon which the prosecution argues that the representations are admissible for a non-hearsay purpose. Firstly, it advances a global argument and submits that the representations as a whole can be used to explain a sequence of events, namely the complainant’s initial reluctance to speak with outsiders and her decision to eventually speak with police. The prosecution submits that it is open to the jury to infer from the fact of the representations being made that the complainant’s earlier reluctance to make a complaint dissolved upon speaking to the representor, this being relevant to establish the control which the accused exercised over her.
Alternatively, the prosecution submits that each individual representation constitutes original evidence of a circumstantial nature which is relevant in proof of the elements of the offences, forming the basis of the charges. In summary, it is submitted that each of the representations serve as evidence contributing to the proof of one or more of the following:
(a) The control exercised by both of the accused over the complainant;
(b) The arrangements by which the complainant came to Australia; and
(c) The conditions of slavery under which the complainant was kept.
With respect to the representations that Mrs Kannan verbally abused the representor, the prosecution submits that it can rely on such evidence as part of the circumstantial case against both accused. Reference was made to Tsang,[23] in which the Court of Appeal stated:
The admissibility of such evidence does not depend on the existence of a common purpose between the accused and a party to the conversation, provided that it is a relevant part of the surrounding circumstances which tend to prove the accused person’s guilt of the offence. Nor is it necessary or the statements to be made in furtherance of an agreement between the accused and others to commit an offence. Such statements are not admitted as an exception to the hearsay rule (that is, as evidence of the truth of an assertion made), but rather as circumstantial evidence from which can element or elements of the offence can be inferred.[24]
[23]Tsang v DPP (Cth) [2011] VSCA 336.
[24]Ibid at paragraph [36].
In support of its submissions of a non-hearsay purpose, the prosecution relies on the case DPP v Lo (Ruling No 2),[25] in which Jane Dixon J examined the admissibility of previous representations in a similar fashion submitted by the prosecution in the present case. It referred to the following statement of principle:
Examples of evidence led for a non-hearsay purpose may include admissions, prior consistent or inconsistent statements adduced for credibility purposes, evidence of words spoken or representations made where the evidence is led to prove the fact of what was said within a particular context or to show something about the event, or to explain a sequence of events, (sometimes referred to as a testimonial fact) regardless of the truth of the representation. Evidence which sheds light on the nature or evolution of a personal relationship at a particular point may fall within this category especially if significant aspects of the relationship would otherwise be obscure.[26]
[25][2018] VSC 148.
[26]Ibid at paragraph [41].
The prosecution relies on this principle in submitting that the representations, as a whole, assist in understanding the nature and evolution of the relationship between the complainant and the accused. Alternatively, it is submitted that each individual representation is evidence which goes to the status of the complainant as a slave. It was noted that, in DPP v Lo (Ruling No 2), Dixon J found that the representations in that case were admissible for a non-hearsay purpose.
Submissions of Mr Kannan
In broad terms, counsel for Mr Kannan seek the exclusion of the representations on the following bases:
(a) The representations are not first-hand hearsay;
(b) The representations have been characterised as admissions, as well as amounting to second-hand hearsay; and
(c) If all or some of the representations amount to first-hand hearsay, they ought to be excluded pursuant to s 137 EA.
Submissions on hearsay
Counsel for Mr Kannan emphasises that the evidence proposed to be given by Siva and Fernandez purports to recount a conversation they had with the now deceased representor, as well as a subsequent conversation they overheard between him and the complainant. If relied upon for a hearsay purpose, it is submitted that Siva and Fernandez’s evidence of the representations amounts to second-hand hearsay and is therefore inadmissible in the trial of Mr Kannan.
The defence noted that its concern does not relate to the function of the interpreter. Rather, it is submitted that the prosecution is seeking to adduce representations from Siva and Fernandez, which were communicated to them by the representor, which in turn were said to have been made to him by Mrs Kannan. It is submitted that the second-hand hearsay nature of the representations is a fundamental problem which cannot be overcome, thus rendering the representations inadmissible in the trial of Mr Kannan.
Submissions on admissions
Counsel for Mr Kannan also submits that, in attempting to adduce the representations for a non-hearsay purpose, the prosecution effectively seeks to introduce admissions allegedly made by Mrs Kannan to the representor against Mr Kannan. It is submitted that the prosecution would be seeking to use the truth of the alleged admissions against Mr Kannan, pursuant to s 87 EA.
The defence contends that, if used for a non-hearsay purpose, the evidence can only be used as an admission against Mrs Kannan and is not admissible against Mr Kannan, and should be excluded. It is argued that s 87 EA does not permit representations to be adduced against Mr Kannan where the prosecution has expressly disavowed joint commission as the basis of Mr Kannan’s criminal liability.
Further, it is submitted that the contrasting impact of s 83 EA operates as an injunction against leading evidence of admissions by one accused in the trial of another. Counsel for Mr Kannan notes the broad definition of an ‘admission’ in the Dictionary of the EA.[27]
[27]A statement against interests.
As such, it is ultimately submitted that the acts and declarations of Mrs Kannan are not admissible as against Mr Kannan. The defence notes the prosecution’s concession that the representations about the financial agreement indicate that it was struck between the representor and Mrs Kannan. Thus, while it is asserted by the prosecution that Mr Kannan was a party to the agreement, the defence argues that the evidentiary basis for such an assertion has not been identified.
Submissions on probative value
Counsel for Mr Kannan seeks the exclusion of the representations pursuant to s 137 EA. It is contended that probative value of the representations must be considered alongside the notes made by Siva and Fernandez, which suggest that facts asserted in a number of the representations had been relayed to the representor by another person and that he was not a direct participant in the original conversations.
It is submitted that, insofar as any of the representations emanated from an unknown or indeterminate family member, the probative value of the evidence is diminished to a lower level. It is also contended that there is a risk of prejudice to the accused if the representations are adduced, on the basis that the jury would speculate as to the source of the information. Moreover, the defence argued there is a risk that the jury may misuse the representations as amounting to admissions.
Accordingly, Mr Kannan submits that there are insurmountable problems in having such representations go to the jury as either hearsay evidence or pieces of circumstantial evidence going to one or more elements of the offences.
In regard to the representations about Mrs Kannan’s verbal abuse, it is submitted that there is no evidence that Mr Kannan was present, aware of it, understood what was occurring, was subsequently made aware of it or that it operated on his mind, knowledge or understanding of the complainant’s alleged condition of slavery.
Counsel for Mr Kannan made the following submissions with respect to particular representations:
i. Representation (a)(ii): it is submitted that the representation does not derive from the representor, but from the complainant’s daughter. As such, it cannot be received as first-hand hearsay and its probative value as a piece of circumstantial evidence is slight, and thus should be excluded.
ii. Representations (a)(ii) and (iii): it is submitted these do not relate to what the representor saw, heard or otherwise perceived but from unidentified family members, and as such they cannot classify as first hand hearsay. Accordingly, it is submitted the evidence should be excluded.
iii. Representation (b)(vi): it is submitted that this appears to be abuse by Mrs Kannan towards unidentified persons and it is not clear it was seen, heard, or otherwise perceived by the representor. It is submitted that the representation ought to be excluded as its probative value is modest as a piece of circumstantial evidence.
iv. Representations (a)(vii) and (b)(iv): these representations were also sought to be adduced by the prosecution under s 66A and 108A EA to enhance the representor’s credibility. The defence submits that the representations cannot be received pursuant to s 108A EA unless they ‘substantially affect’ the assessment of the representor’s credibility. It noted the fact that the representations are dated. It also submitted that the representor’s feelings about the complainant and her state of health are irrelevant. Counsel for Mrs Kannan further submitted that the fact that the representor came to know of the complainant’s state of health and then stated that he did not care about the money and wished for her return is not sufficiently rehabilitative of his credibility to permit reception under s 108A.
v. Representations A(v) and B(i): it is submitted that it is unclear whether these representations derive from anything the representor saw, heard, or otherwise perceived, as opposed to accounts relayed to him by family members. As such, it is contended that they have indeterminate status and should therefore not be admitted for a hearsay purpose. It is also submitted that the probative value of the representations is slight, and due to the danger of unfair prejudice, they should be excluded pursuant to s 137 EA.
The defence contends that while Tsang, on its face, permits reception of the evidence without the requirement of reliance on joint commission or common purpose, there is no basis for permitting the representations against Mr Kannan in the absence of evidence of his involvement. While it is conceded that the representations bear on an element of the offence, it is disputed that they are admissible against Mr Kannan.
Further, the defence argues that the prosecution must grapple with the effect of s 60 EA in order to adduce these representations for a non-hearsay purpose. It is submitted that in seeking to rely on the representations that may amount to admissions, the prosecution are in effect subverting the effect of the hearsay rule as against Mr Kannan. It is submitted that the effect of s 60(3) EA is that the section does not apply to evidence of an admission.
Accordingly, it is argued that where an admission is made by an accused in a criminal trial, the prosecution must demonstrate that the evidence complies with the hearsay provisions of the EA, with the injunction against the admission of second-hand hearsay being found in s 82 EA. It is submitted that the admissions cannot be admitted into evidence if constituting something less than first-hand hearsay.
On this point, counsel for Mr Kannan submits that the cases put forward by the prosecution, including Lee and Schanker, do not consider the reception of hearsay evidence characterised as admissions by an accused. It is submitted that if the prosecution’s construction of s 60 EA is correct, in considering whether the representations should be received for a non-hearsay purpose, the issue of whether the representations are first or second hand hearsay and the problems with attribution are relevant. It is reiterated that the representations would not be relevant or admissible against Mr Kannan, even if deemed admissible for a non-hearsay purpose.
The defence also refers to s 81 and 82 EA as operating as an injunction against the admission of second-hand hearsay. It is noted that s 82(a) EA provides that an admission can still be admissible if it is first-hand hearsay. In light of these provisions, it is submitted that s 87 cannot operate as a vehicle for the reception of otherwise inadmissible second-hand hearsay of admissions.
Further, it is submitted that the cases of Higgins and Helicopter Resources, referred to by the prosecution, do not suggest that second-hand hearsay can be received pursuant to s 87 EA if there is prima facie evidence that those admissions were made with the authority of another accused. It is submitted that, on an ordinary construction of the EA, given that s 81 and 82 define how admissions can be received, it would be counterintuitive that second-hand hearsay which cannot be received because of s 62 can otherwise be received by s 87 EA. It is submitted that those sections represent an insurmountable bar for the reception of the evidence, and applies to all representations made by either accused to the representor. Thus, the defence submits that the issue of the admissibility of the representations against Mr Kannan was correctly resolved in Ruling 10.
In the event this Court finds that the evidence is capable of being received, either because it does not constitute second-hand hearsay or is admissible for another purpose, counsel for Mr Kannan submits that s 87 EA must be the subject of consideration. It is contended there is insufficient material by way of exchanges between Mrs Kannan and the representor to conclude that she made the representations on the authority of Mr Kannan. The defence argues that the question of agency is not capable of being explored by any witness at trial. In this regard, it is emphasised that the representor is no longer available, Mrs Kannan will not be called by the prosecution as a witness against Mr Kannan, and the complainant was not a party to the conversations between Mrs Kannan and the representor. It is also noted that Mr Kannan was not privy to the conversations and that Siva and Fernandez cannot illuminate on the question of agency. Accordingly, it is submitted that such factors produce significant unfairness to Mr Kannan in circumstances where the evidence supporting agency is very limited, noting the absence of any direct or express statements on the topics between the parties.
Further, it is noted that, at the time of the committal, Mr Kannan was not put on notice that the prosecution intended to rely on representations made by Mrs Kannan to the representor in its case against him. As such, no cross-examination on that topic was conducted on behalf of Mr Kannan. It is submitted that the prosecution’s intention was only communicated via a hearsay notice dated 29 January 2020, long after the conclusion of the committal proceedings. Accordingly, the defence contends that the issue of agency is not available for Mr Kannan to explore at trial, thus causing significant unfairness to him if the evidence is adduced.
The defence further notes that the prosecution has not indicated an intention to rely on the co-conspirators rule. As such, it is submitted that evidence of the representations made by Mrs Kannan are not admissible as evidence of agency against Mr Kannan. It is noted that the co-conspirators rule can only be invoked here if the prosecution asserts that the accused were engaged in the joint commission of the offending which encompassed the negotiations to procure the complainant’s travel to Australia in the expectation of reward. The defence reiterates that the prosecution has expressly eschewed joint commission as the basis of Mr Kannan’s criminal liability, to the consequence that the representations by Mrs Kannan are inadmissible against Mr Kannan.
It is further submitted that the adducing of this evidence would have the effect of subverting the separate trial to which Mr Kannan is entitled. It is submitted that in circumstances where the prosecution have not put the case on the basis of joint commission, judicial directions designed to ensure separate consideration of the two trials would not be effective, and would be fatally undermined.
Prosecution responses
In its response, the prosecution withdrew its submissions relating to agency with respect to Mr Kannan. However, it rejected the proposition that the probative value of the evidence is outweighed by any prejudicial effect. It contended that evidence of the representations has always been part of the prosecution case, and can be found in the statements of both Siva and Fernandez, which have long been part of the brief.
While acknowledging a degree of prejudice in the inability of Mr Kannan’s counsel to cross-examine the representor at trial, the prosecution submitted that this situation had been taken into account by the legislature in providing for the hearsay exceptions in s 65 EA. It contended that the purpose of the exceptions to the hearsay regime is that where the representor is not available, and the relevant pre-requisites are satisfied, the representations are prima facie admissible. Reference was also made to the case of Papakosmas,[28] in which McHugh J stated that the mere fact that a party becomes denied the later opportunity to cross-examine the representor is not sufficient prima facie for the prejudice to outweigh the probative value of the evidence.
[28]Papakosmas v The Queen [1999] 196 CLR 297 at paragraphs [84]–[87].
The prosecution also noted that the representor, Siva and Fernandez were cross-examined at the committal about the conversations of 24 September 2015. It was submitted that counsel for Mr Kannan at that time had the opportunity to question these witnesses on the representations and did so about some aspects of the alleged financial arrangements. It was contended that opportunities for cross-examination and possible challenge were clearly open to defence, who made a forensic decision at that particular time to not cross-examine the witnesses on particular issues.
With respect to the probative value of the evidence, the prosecution contended that evidence of the representations is important in its circumstantial case against Mr Kannan, namely as evidence of the financial arrangement to which the complainant was not involved. It also submitted that the representations counter other representations which suggest that the representor and complainant were setting the accused up for money. Further, it is submitted that the evidence goes towards the control that the accused had over the complainant and her ability to return to India. The prosecution contended that such representations counter those made by the accused to Sergeant Keenan that they did not know her family and had no way of contacting them.
Further, the prosecution referred to evidence supporting the representor’s involvement in the agreement as strengthening the probative value of the representations. It pointed to references that the complainant was not in contact with her sons and lived with her daughter and the representor, that communications between the complainant and the accused occurred on the representor’s phone, that the representor had an association with Mr Kannan and they arranged for the complainant to come to Australia and that the representor initiated all the complaints and letters of inquiry to bring her home. It submitted that, on the evidence as a whole, it is apparent that the person who made the representations was the person whose phone was being used when the agreement was struck.
As such, the prosecution submitted that the evidence of the representations is of high importance and significant probative value in its overall circumstantial case against the accused. It noted that this proposition is particularly strengthened in relation to the representations which are not adequately covered in other aspects of the evidence. Accordingly, the prosecution contended that the Court should not exercise the power under s 137 of the Act to exclude the evidence.
In response to the defence’s submissions on hearsay, the prosecution pointed to s 62(2) EA, which provides that first-hand hearsay includes where a person has personal knowledge of the asserted fact if his knowledge might reasonably be supposed to have been based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. Relying on this section, it submitted that the Court is not restricted to considering the terms of the actual representation. The prosecution noted that this was left open by the New South Wales Supreme Court in Jiang v Quach.[29]
[29][2000] NSWCA 147 at paragraph [20].
Accordingly, the prosecution relied on the aforementioned factors[30] in submitting that the representation might reasonably be supposed to have been something the representor saw, heard or otherwise perceived, thus constituting first-hand hearsay under s 62(2) EA.
[30]As set out in paragraph [76].
In relation to representations (a)(vii) and (b)(iv), the prosecution pressed reliance on s 66A and 108A EA and pointed to the un-anticipated nature of the call between the representor and Siva and Fernandez as a circumstance rendering the representations as substantially affecting his credit.
In response to the defence’s submissions regarding admissions, the prosecution first noted that s 60(3) EA only applies where there is evidence of an admission. As such, it submitted that the complaint by the defence focuses only on the representations made by an accused. Additionally, it submitted that s 60(3) EA does not render evidence of an admission inadmissible in a criminal proceeding. Rather, the prosecution submitted that the effect of s 60(3) EA is that s 60(1) EA, which allows the evidence to be admitted for all purposes, does not apply in criminal proceedings to evidence of an admission. Accordingly, it submitted that there is a reversion to the pre-EA, common law position, which is that the representation is only admissible for the nominated non-hearsay purpose. As such, the prosecution submitted that the representations are able to be adduced, with a direction to be given to the jury that admissibility is on that limited basis.
Lastly, on the issue of the admissibility of the representations of the financial agreement as against Mr Kannan, the prosecution noted that Tsang contains no restrictions which would require Mr Kannan to know about or be present in the conversation in order to be a party.
Submissions of Mrs Kannan
Counsel for Mrs Kannan adopts all the submissions made on behalf of Mr Kannan, insofar as they can be applied to her case. It is submitted that should the arguments made on behalf of Mr Kannan be successful in leading to the exclusion of the disputed representations, then logically that should occur similarly in the case of Mrs Kannan.
It is submitted that the prosecution cannot avoid the requirement of admissibility under the EA by referring to the representations as circumstantial evidence and part of the broader picture of its case. It is submitted that each piece of evidence in itself must be considered independently admissible.
With respect to the original evidence argument, the defence submits that a basis for the admissibility of the representations has been identified by the prosecution being the fact that the conversations took place. It noted that the prosecution may still adduce the fact that the conversations occurred on a particular topic, rather than the truth of the representations made. It is submitted that if the Court accepts that the representations are admissible on a non-hearsay basis, namely to prove the fact that certain representations were made but not the specifics of that conversation, counsel for Mrs Kannan would like to reserve its position to sanitise the contents such that a lot of the problems and prejudice highlighted by counsel for Mr Kannan do not arise.
Analysis and conclusions
Determining the issues under consideration
In DPP v Lo[31] Jane Dixon J usefully referred to the approach taken by Kaye J in DPP v Asling (Ruling No 2)[32] when deciding the admissibility of disputed pieces of hearsay evidence. Kaye J set out the questions to ask as being:
[31][2018] VSC 148.
[32][2017] VSC 38.
(a) Is the evidence relevant to a fact in issue?
(b) Is the hearsay evidence, sought to be adduced, first hand hearsay?
(c) Does the evidence come within any of the exceptions to the hearsay rule relied on the by the prosecution?
(d) For the purpose of s 137 of the Act, is the probative value of the evidence outweighed by the danger of unfair prejudice to the accused if the evidence were admitted?[33]
[33]Ibid at paragraph [34].
With respect, I agree that it is appropriate to employ a broadly similar approach in the determination of the issues in the present case.
Representations and previous representations
The terms representation and previous representation are defined in the Dictionary of the EA as follows:
“representation”: includes –
(a) an express or implied representation (whether oral or in writing); or
(b) a representation to be inferred from conduct; or
(c)a representation not intended by its maker to be communicated to or seen by another person; or
(d) a representation that for any reason is not communicated;
“previous representation” means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
In my opinion, the representations under consideration are both representations and previous representations as defined by the EA. In each case, they are expressly made statements by the representor not made in the course of evidence given in the proceeding in which they are sought to be adduced. No party advanced submissions to the contrary.
Are the disputed representations relevant to a fact or facts in issue?
Section 55(1) and s 56 EA set out the requirements for relevance and admissibility of evidence as follows:
Section 55 – Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Section 56 – Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
As to relevance, the prosecution puts forward a number of bases supporting the admission of the disputed representations. In my opinion, the representations are relevant for the reasons identified, including the assessment of whether the complainant received adequate remuneration for her work; her credibility, particularly relating to the circumstances of her making complaints to Siva, Fernandez and the police; the refusal by Mrs Kannan to a request for payment, and as to the nature of the relationship between the complainant and the accused. In reaching this conclusion, it is necessary to bear in mind the circumstances leading up to and surrounding the events at the hospital where these representations came to light, and the wider circumstances alleged over the substantial period before the complainant’s admission to hospital.
In short, it is alleged that the complainant is a vulnerable and illiterate older woman who has been exposed to a long period of minimal remuneration, abuse, isolation and subjugation at the hands of the accused. The prosecution case is that when Siva and Fernandez attended the hospital to speak with her, the complainant appeared unwilling to reveal a complete and truthful picture of her circumstances. She initially expressed that she needed to seek consent from Mrs Kannan to hand over her medical records to authorities, and when presented with the opportunity to speak with her family in India, stated that ‘she could not speak to her family without Mrs Kannan being present’. Further, during the first part of the conversation between the representor and Siva and Fernandez, the complainant insisted she could not speak to her family, choosing only to listen. It was during that conversation that the complainant became emotional and subsequently decided to speak with the representor, following which she agreed to speak to members of the Australian Federal Police.
The limitation I propose to issue pursuant to s 136 EA will restrict the use of the evidence as being relevant only to explain the series of events leading to the complaints being made to the authorities, and as pieces of circumstantial evidence explaining the evolution of the condition of slavery alleged to have existed at the hands of the accused towards the complainant.
In my opinion, the non-hearsay representations identified above are admissible against both accused. As discussed, admissibility for a non-hearsay purpose does not require the accused to be present and to have heard what was said, or depend on the principles of agency, authority or common purpose. Rather, the requirement is that the representations are relevant to the separate cases alleged against each accused on the basis of the fact that that the representations were made.
Application to exclude evidence pursuant to 137 EA
Counsel for Mr Kannan submitted that, if the disputed evidence is relevant and admissible, pursuant to s 137 EA, it should be excluded from admission on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused. The terms of s 137 EA mandate that the Court must refuse to admit the evidence if the probative value of it is outweighed by the danger of prejudice.
Counsel for Mrs Kannan joined in the argument advanced as to the application for exclusion of the evidence pursuant to s 137 EA.
Both accused submit that the probative value of the disputed evidence is low. I disagree with that submission, being of opinion that the representations sought to be led are of considerable probative value in relation to the bases of admissibility as outlined. The non-hearsay evidence is capable of assisting in the explanation of the complainant’s change of mind, as discussed, as well as providing aspects of circumstantial evidence relevant to establishing the control exercised by the accused over the complainant.
Further, I am not of the opinion that the disputed evidence is prejudicial to the point where the probative value is outweighed. As observed above, I have carefully considered the evidence that is proposed to be given by Siva and Fernandez, and have taken into account that the representor is deceased and cannot be the subject of further examination. As noted, the absence of such a witness does not of itself necessarily result in unfairness or prejudice. In this regard, I note that the representor did give evidence and was cross-examined at the committal hearing. Siva and Fernandez also gave evidence at the committal and the evidence proposed to be given by them is contained in the brief materials. I have taken all these matters into account, including the time when notice was given by the prosecution as to the use of this evidence, when assessing the question of possible unfair prejudice to the accused.
I am of the opinion that adequate directions can be given to alleviate any prejudice that might exist as a result of admitting the disputed evidence. Accordingly, having weighed all the matters argued, I refuse the application for the exclusion of the evidence under dispute.
Separate trial
I note that I previously refused an application for a separate trial for Mr Kannan and determined that the two accused should be tried jointly. I have remained mindful of the impact of this ruling to that decision.
Liberty to apply
Finally, as noted above, the complainant has yet to give evidence in this matter. Should the pre-recording of her evidence throw further relevant light on the matters discussed in this ruling, the parties will have liberty to apply to revisit the conclusions I have made.
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