R v Kannan (Ruling No 2)
[2019] VSC 531
•17 July 2019
| 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: | 12 July 2019 |
DATE OF JUDGMENT: | 17 July 2019 |
CASE MAY BE CITED AS: | R v Kannan & Anor (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 531 |
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CRIMINAL LAW – Ruling – Suppression order – Application for names of accused to be suppressed – Necessary to prevent real and substantial risk to administration of justice that cannot be prevented by other reasonably available means – Necessary to protect safety of any person – Application granted – Open Courts Act 2013 (Vic) ss 14, 17 – 19.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms T. McDonald SC Ms K. Breckweg Ms C. Fitzgerald | Commonwealth Director of Public Prosecutions |
| For Kumuthini Kannan | Dr G. Boas Mr P. Smallwood | Stary Norton Halphen |
| For Kandasamy Kannan | Mr P. Chadwick QC Ms M. Brown | Peter Lunt Lawyers |
| For The Herald & Weekly Times Pty Ltd and The Age Company Pty Ltd | Mr C. Jankie | Macpherson Kelley |
HIS HONOUR:
Introduction
On 8 July 2019, Kumuthini Kannan (‘the applicant’) filed a notice of application for a proceeding suppression order prohibiting the publication of the names of, or information that would identify, Kumuthini Kannan and/or Kandasamy Kannan, being both accused. The notice stated reliance would be placed on a psychological report authored by Jeffrey Cummins on 4 July 2019. The applicant did not seek an interim suppression order.
On the same day, the hearing of the application was listed for 12 July 2019. The Court informed the media of this date and provided the notice of application as filed. Prior to the hearing, I was informed the application was opposed by the prosecution and also The Herald & Weekly Times Pty Ltd and The Age Company Pty Ltd (‘the media’), who appeared through counsel.
During the hearing on 12 July 2019, the application was limited to an order that prohibited the publication of the names of both accused. The applicant abandoned the reference to ‘information that would identify Kumuthini Kannan and/or Kandasamy Kannan’. Furthermore, the applicant clarified that a non-publication order was sought only until verdict was returned in respect of the two charges against herself.
Background
The accused are each charged with the following offences, both contrary to s 270.3(1)(a) of the Criminal Code Act 1995 (Cth) (‘the Code’):
(a) Charge 1: Between 5 July 2007 and 30 July 2015, Kumuthini Kannan and Kandasamy Kannan intentionally possessed a slave; and
(b) Charge 2: Between 5 July 2007 and 30 July 2015, Kumuthini Kannan and Kandasamy Kannan intentionally exercised over a slave any of the powers attaching to the right of ownership, namely use.
I have summarised the prosecution case regarding these charges in a previous ruling in this matter.[1]
[1]See R v Kannan & Anor (Ruling No 1) [2019] VSC 461R.
The applicable legislation
This application is governed by Part 3 of the Open Courts Act 2013 (Vic) (‘the Act’), and is made pursuant to s 17 of the Act, which states:
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of-
(a) a report of the whole or any part of a proceeding;
(b) any information derived from a proceeding.
Section 18(1) of the Act provides that a court may make a proceeding suppression order if satisfied as to one or more of the following grounds:
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relationship to national or international security;
(c) the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence;
(e)the order is necessary to avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding;
Section 19(1)(b)(i) of the Act allows a court to make a proceeding suppression order on the application of a party to the proceeding concerned, as has occurred here. Further, s 19(2) of Act provides that a range of relevant individuals may be heard on such an application, including the parties and news media organisations.
Additionally, s 19(5) of the Act provides that:
A proceeding suppression order may be made subject to any exceptions and conditions that the court or tribunal thinks fit and specifies in the order.
Psychological reports
The applicant relies upon two psychological reports authored by consulting clinical and forensic psychologist Jeffrey Cummins, dated 16 November 2018 and 4 July 2019. I note the applicant’s notice of an application for a suppression order only referred to the latter report, but no objection was raised in response to both being relied upon at the hearing.
The report authored on 4 July 2019 included the following relevant opinions:
(a) the applicant has a primary diagnosis of a Major Depressive Disorder which is severe in type, recurrent and associated with anxious distress;
(b) the applicant is now at significant risk of developing a reactive Trauma and Stressor Related Disorder in the form of an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct (‘the further condition’);
(c) the applicant is at risk of developing the further condition because of the protracted legal proceedings, with a jury not yet being empanelled;
(d) as a result of the delay in the proceedings, there are a number of stressors that have occurred on the applicant, including reduced financial circumstances;
(e) the applicant has reported additional stress caused by factors associated with her children and knowledge amongst their teachers and peers that their parents are involved in a criminal trial;
(f) the applicant is concerned about the impact of publicity on the mental health of her children; and
(g) that any current publicity concerning the trial would inevitably impact adversely on the applicant’s mental health and capacity to focus and engage in the trial.
Mr Cummins expressed the final opinion that it would be appropriate for the Court to grant a suppression order.
Submissions for the applicant
Grounds of the application
This application is brought on two grounds, namely those contained in ss 18(1)(a) and (c) of the Act, being that such an order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means, and is also necessary to protect the safety of any person. It is submitted that these grounds are founded in the evidence contained in the two reports of Mr Cummins, as above.
In respect of s 18(1)(a), the applicant submits it is in the interests of the administration of justice that the trial proceeds to verdict. It is noted that preliminary argument has already consumed a significant amount of court time and has not yet concluded. In this regard, I note parties recently estimated the jury trial will be of a duration of four to six weeks, and is currently expected to commence at the conclusion of preliminary argument. Counsel submits that in the circumstances of the applicant’s psychological ill-health, future publicity may result in her becoming unable to participate in the proceedings, which would not be in the interests of the administration of justice.
Regarding the ground contained in s 18(1)(c), it is submitted this order is necessary for the protection of the psychological health of the applicant and her three children. Counsel refers to the case of DPP v QPX, in which Bongiorno JA held that the protection of a person’s safety may involve a danger to their physical or psychological health, or a combination of both.[2] His Honour further observed that:
There is no warrant to qualify the meaning of the word ‘safety’ in s 18(1)(c) by confining it to physical safety. Psychological harm to a person may be as serious or worse than physical harm.[3]
[2][2014] VSC 211 [15].
[3]Ibid.
The applicant filed written submissions and supplemented these with oral argument, noting in particular:
(a) the applicant’s history and formal diagnosis of depression;
(b) the applicant’s previous suicide attempt in September 2018, for which she was admitted to Box Hill Hospital;
(c) the previous publicity of the case at the time of committal proceedings;
(d) the applicant’s eldest child experienced harassment at her previous school due to publicity of the charges against her parents, a situation that contributed to the decision to transfer her to another school;
(e) the health and educational circumstances pertaining to the applicant’s children, of which the Court was reminded of previous medical evidence establishing that the applicant’s two younger children have been diagnosed with Autism Spectrum Disorder, and have experienced significant challenges in the educational environment and additional behavioural issues arising from publicity of these proceedings, resulting in the applicant’s son changing schools; and
(f) the applicant’s lack of coping with her domestic situation and her concerns about how reporting of the trial could adversely impact on the mental health of her children.
It is submitted the applicant’s attempted suicide, as above, should be regarded as a genuine attempt. It is further submitted that having been diagnosed with a Major Depressive Disorder which Mr Cummins describes as severe, the applicant is currently overwhelmed and disorganised and struggling to cope.
The test of necessity
The applicant submits the test of necessity in deciding this application is set out in s 18(1) of the Act. It is accepted this requires something more than establishing that such an order is merely convenient, reasonable or sensible. The case of DPP (Cth) v Brady is referred to, in which Hollingworth J stated:
In each case, the court may only make (or confirm) a proceeding suppression order if it is satisfied that the order is “necessary” to achieve one or more of the stated purposes set out in s 18. The word “necessary” imposes a high standard of satisfaction … The court must be satisfied that the suppression order is necessary, based either on admissible evidence or “sufficient[ly] credible information that is satisfactory to the court” (s 14(1)). “Sufficient credible information” can include inference which may be drawn from available evidence, and from judicial knowledge and experience.[4]
[4](2015) 252 A Crim R 50, 60 [59]-[60] (‘Brady’).
The applicant further refers to the recent case of Chaarani v DPP (Cth) & Ors, in which the Court of Appeal cited Brady, and observed that ‘the word ‘necessary’ imposes a high standard of satisfaction…not merely reasonable or desirable’.[5]
[5][2018] VSCA 299 [41] (‘Chaarani’), citing Brady (n 4) 60 [59].
The applicant submits that the two reports of Mr Cummins, dated 16 November 2018 and 4 July 2019, provide the factual basis to inform the Court’s assessment of the necessity of such an order.
The applicant emphasises the risk that her children will be confronted by peers as a result of the publicity of the accused persons’ names, with the consequent and very real prospect that the applicant would fall into psychological ill health, such that she would become unable to participate in the proceedings.
The applicant acknowledges that the order sought would not prohibit reportage of the facts and the progression of proceedings, and an interested party may be able to connect the two accused to those facts, especially given the previous publicity. However, it is submitted the order remains necessary to protect the interests outlined above, especially to prevent the risk of the applicant’s children’s peers from connecting future reports to the applicant and her family.
Submissions for the media
In opposing the application, counsel for the media accepts the applicant is suffering from a severe illness, but submits the evidence does not establish a risk that the applicant would not be able to participate in the trial if such an order was not made.
Counsel for the media notes the general presumption in favour of disclosure of information and submits the Court must ensure any order is limited to achieving the purpose for which it is made. Counsel emphasises the concept of necessity that governs this application, and refers to the satisfaction required that the risk is real and substantial and cannot be prevented by other reasonably available means. It is submitted that this test of necessity is only satisfied in exceptional circumstances.
In response to the particular circumstances of this application, counsel for the media submits the Court must distinguish between the adverse impact to the applicant caused by the very nature and involvement in this matter, as against the adverse impact directly caused by the publication of the accused persons’ names. Counsel submits the Court may only make such an order if satisfied it is necessary to prevent the latter.
Further, it is submitted that such an order would have no utility. In this regard, counsel for the media relies on an affidavit sworn by himself on 10 July 2019, to which was exhibited a sample of internet search results pertaining to the two accused’s names. Counsel submits these search results refer to the relevant charges and circumstances of the accused in great detail, with reports dating back to at least April 2017. It is submitted that an order suppressing the accused persons’ names would be futile in these circumstances, and therefore cannot be said to be necessary.
Counsel referred to the decision of Ferguson J (as her Honour then was) in Cooper v Herald & Weekly Times Pty Ltd & Ors, in which an application for a suppression order prohibiting the publication of the name and identity of the applicant was refused.[6] In that case, the applicant relied on evidence that he was suffering from a severe mental illness and that if his identity and charges were publicised, there was a risk he would self-harm.[7] It was further submitted that the risk would likely increase if such publication was widespread and ongoing.[8]
[6][2013] VSC 589 (‘Cooper’).
[7]Ibid [2].
[8]Ibid.
Counsel for the media argues the facts in Cooper are ‘entirely similar to this case’. In particular, counsel notes that like the applicant in Cooper, the present applicant is receiving ongoing mental health treatment and the relevant proceedings have already received significant publicity. In Cooper, her Honour concluded that these two factors were significant in the decision to refuse the application sought, emphasising the ‘expert care and treatment’ the applicant was receiving and the ‘little, if any utility’ of a suppression order given the existing publicity.[9]
[9]Cooper (n 7) [14]-[15].
Submissions for the prosecution
The prosecution adopts the submissions of the media, and submits that an order suppressing the names of accused would have little utility given the extensive past publicity. Further, it is submitted that the evidence of Mr Cummins fails to provide a nexus between the applicant’s depressive disorder and her capacity to focus on the trial process.
Further written submissions
Due to the manner in which the arguments developed during the hearing of this application, parties were afforded the opportunity to file any further written submissions. Counsel for the applicant advised that the previous submissions were relied upon, and no further material was put before the Court.
Counsel for the media filed brief further submissions, referring to the decision of Bell J in PQR v Secretary, Department of Justice and Regulation (No 1), in which His Honour considered the test of necessity and observed:
[t]he purpose of this criterion is both to enable the court to make a proceeding suppression order when so called for and to ensure that this is confined to exceptional cases of true necessity.[10]
[10](2017) 53 VR 45, 81 [91].
Further, Bell J also cited the leading case of News Digital Media & Anor v Mokbel & Anor in which the Court of Appeal stated that:
the making of an order restraining, restricting, or postponing the reporting of a court proceeding or any part of a court proceeding is exceptional and, in general, will be made only where it is necessary to preserve the integrity of the court process, to ensure that the process can function properly, or to protect privacy or confidentiality of very limited kinds.[11]
[11]Ibid, quoting (2010) 30 VR 248, 259 [35].
I have taken into account these additional written submissions for the media, and accept the test of necessity is only satisfied in exceptional cases.
Analysis
Before me is uncontradicted evidence of Mr Cummins that the applicant suffers from a severe Major Depressive Disorder, and is at risk of developing a reactive Trauma and Stressor-Related Disorder in the form of an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. As above in [11], Mr Cummins opines that any current publicity concerning these proceedings would inevitably impact adversely on the applicant’s mental health, and in turn, her capacity to engage in the trial process. No evidence or submissions cause me to reject or qualify the opinions of Mr Cummins. In this respect, I am satisfied the Court has been provided with evidence and sufficiently credible information about the medical condition of the applicant.[12]
[12]Open Courts Act 2013 s 14.
Furthermore, my consideration of this application is informed and fortified by knowledge gained of the applicant’s health over the past twelve months during numerous pre-trial hearings and from various medical reports that have been filed over that time. Such reports have included material concerning the health of the applicant’s children and the impact of their circumstances on her own health.
In determining this application, I am acutely conscious of the principles of open justice, which were recently reaffirmed by the Court of Appeal in Chaarani.[13] That matter concerned an application for a suppression order in the circumstances of a subsequent trial following a finding of guilt in a previous trial. The Court of Appeal concluded that directions to the jury in the second trial would be sufficient to ameliorate any risk of prejudice occasioned by the publicity surrounding the first trial.[14] The nature of the application presently before me is significantly different, and the relevant risks cannot be reduced by jury directions.
[13]Chaarani (n 5) [40]-[41].
[14]Ibid [49].
In the matter of DPP v Lawson & Ors (Ruling No. 2), an application was made to suppress publication of the first trial until the second trial of the co-accused was held.[15] In that case, Lasry J granted the application in part by ordering some aspects of the first trial could not be reported until the verdicts were returned in the second trial.[16] In coming to this decision, his Honour referred to general principles that similarly apply to this application, stating:
[15][2012] VSC 469.
[16]Ibid [23]-[24].
An important consideration in an application for such orders is the general principle of open justice. Orders impinging upon this general principle must be necessary to ensure a fair trial and go only so far as is necessary. The open justice principle has developed over a significant period but as [McHugh JA] said in John Fairfax & Sons Ltd v Police Tribunal of NSW & Anor:
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule when its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified that open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom.[17]
On whether or not public reporting of a trial needs to be contemporaneous, it is to be noted that in Re S (A Child) (Identification: Restrictions on Publication), Lord Steyn said:
A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the value of the rule of law. (emphasis added)[18]
[17]Ibid [8] citing (1986) 5 NSWLR 465, 476-477.
[18]Ibid [9] citing [2004] UKHL 47; [2005] 1 AC 593, 607.
The utility of a suppression order
In my opinion the suppression order sought would have utility. In reaching this conclusion, I acknowledge the significant past publicity. As submitted by counsel for the media, I recognise that an internet search of the names of the both accused or the topic of the charges will generate results identifying them and the nature of this case.
However, I note that reports were significantly more intense at the time of the committal and appear to have lessened in the period since. By comparison to the circumstances surrounding Cooper,[19] there has been a significant period of apparently minimal publication between the committal and the making of this application. As above, during this period, two of the applicant’s children have moved schools, partly due to the knowledge of these proceedings amongst their former school communities and resulting attention.
[19]Cooper (n 6).
In my opinion, it is reasonable to expect that publicity will intensify when this case is opened before a jury. I accept the applicant’s submission that a suppression order prohibiting the publication of the accused persons’ names would mitigate the risk of these proceedings being raised further with the applicant’s children. While future anonymised reports may be able to be linked with previous publicity, such an order would reduce the contemporaneous publicity that will inevitably accompany the trial, thus in turn, reducing the risk of the applicant’s children being confronted with reports within their communities.
On the basis of the evidence of Mr Cummins as to the link between future publicity and the mental health of the applicant and her children, the utility of the order sought is inextricably linked to the essential requirement that these proceedings be conducted efficiently and fairly. It cannot be said that such an order would be futile in these circumstances.
The balancing exercise
This application involves judgment as to whether the public‘s right to be fully informed of the open workings of the criminal justice system should be restricted for the purposes of protecting the safety of the applicant and her children and protecting the proper administration of justice. This involves a balancing of interests when determining whether I am satisfied that a suppression order is necessary for the grounds contained in ss 18(1)(a) and (c) of the Act.
I accept that the risk to the psychological health of the applicant and her children, and in turn, the administration of justice, will not be eliminated by the making of a suppression order. In this regard, I note the observation of the Court of Appeal in Chaarani that ‘there is no requirement in the Open Courts Act (or more generally) that any risk of prejudice to the possible administration of justice be prevented altogether’.[20]
[20]Chaarani (n 5) [42].
Further, while the media submits the circumstances in Cooper are similar, it is my opinion that this case is distinguishable. In Cooper, the application was heard two days after the applicant had been charged, at which time there had been significant publicity.[21] That is far from the present case. The current matter has been before this Court for well over twelve months, and the committal concluded in February 2018. Not unexpectedly, publicity has diminished since the committal. Moreover, it is clear from the reasoning of Ferguson J in Cooper that while there was an acceptance of the presence of a severe illness, the applicant was receiving ‘expert care and treatment with protective measures’.[22] In those circumstances, it was held that a suppression order was not necessary to ensure the safety of the applicant.[23] However, in the present case, despite the applicant undergoing an established care and treatment regime for a considerable time, Mr Cummins maintains there is a significant risk that present treatment will not prevent the further illness from developing in the event of future publicity.
[21]Cooper (n 6) [2].
[22]Ibid [14].
[23]Ibid.
In all the circumstances, I have reached a high degree of satisfaction that the order sought is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means, and that it is necessary to protect the safety the applicant and her children.[24]
[24]Brady (n 4) [59].
As observed, this is not a case in which judicial directions are relevant to the reduction of risk. I am satisfied that given the circumstances of this application and the multiple individuals concerned, the relevant risks cannot be prevented by other reasonably available means. I have already noted the applicant is receiving regular treatment, and yet the evidence states there is an risk that her mental wellbeing will likely decrease with any future publicity that results in her children being identified in connection with the proceedings. In my opinion, the suppression of the names of both accused is a small price to pay for a limited time, that increases the prospect that the applicant will remain well for the duration of the trial.
Furthermore, I note that as this application was limited to prohibition of publication of the names of both accused, the media can still report on the proceedings. The media can still inform the public as to the nature and substance of this matter and interested individuals are able to attend the trial. At the time verdicts are returned, the suppression order will cease to have effect, and the media will be able to publish the names of the accused in connection with these proceedings. In my opinion this represents a relatively confined but effective measure in reducing risk.
Further, in relation to the history of this matter, I note that on 18 July 2018, I made a suppression order prohibiting the publication of the names, addresses or any information tending to identify both accused and their children, in a report of an application for variation of the bail conditions of Mrs Kannan, or any report which was derived from the hearing of that application. That suppression order expired on 30 January 2019, but was made following an application made by Mrs Kannan and on the grounds that it was necessary to protect the safety of persons, namely the accused’s children, pursuant to s 18(1)(c) of the Act. I note that the media were provided with notice but did not attend the hearing of the application on 18 July 2018.
Conclusion
Therefore, for the reasons outlined above, I will grant the application for a suppression order, prohibiting the publication of the names of both accused and their three children until a verdict is delivered in respect of both accused.
I note that the order I will make includes two elements in addition to those sought by the applicant, namely that:
(a) the names of the applicant’s three children will also be suppressed; and
(b) the order will expire upon verdicts being delivered in respect of both accused, not just the applicant.
Given the grounds of this application and all the circumstances outlined above, I consider these additional components necessary.
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