R v Kannan (Ruling No 3)
[2019] VSC 797
•5 December 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: | 25 June; 10, 11, 30 July; 7-9, 12-14 August 2019 |
DATE OF JUDGMENT: | 5 December 2019 |
CASE MAY BE CITED AS: | R v Kannan & Anor (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 797 |
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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 – Post-offence incriminating conduct – Alleged lies and omissions – Application for exclusion of evidence – Application refused – Evidence admissible as post-offence incriminating conduct – Further application for exclusion of evidence due to unfair prejudice refused – Jury Directions Act 2015 – Evidence Act 2008.
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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 |
HIS HONOUR:
Introduction
This ruling relates to applications made by Kumuthini Kannan (‘Mrs Kannan’) and Kandasamy Kannan (‘Mr Kannan’) for evidence sought to be adduced by the prosecution as post-offence incriminating conduct to be deemed inadmissible. I will also address a further application made by Mr Kannan that argues that if the evidence is ruled admissible as post‑offence incriminating conduct, it should not be admitted pursuant to s 137 of the Evidence Act 2008.
On 7 September 2018, 7 and 8 August 2019, the prosecution filed Notices of Evidence of Incriminating Conduct in respect of each accused, pursuant to s 23(1) of the Jury Directions Act 2013. This ruling will only deal with the notices filed on 8 August 2019, as the prosecution informed the Court that they replace those previously filed and are a consolidation of all post-offence conduct sought to be led.
These notices refer, in part, to statements made by both accused, which are alleged to be lies. The prosecution seeks these alleged lies to be led as post‑offence conduct, amounting to implied admissions of guilt. Briefly, the evidence under present consideration arises from conversations that occurred between both accused and a Victorian police officer, Sergeant Carl Keenan, as he was then ranked. The content of these notices and the relevant evidence is discussed in greater detail below.
It is agreed between parties that all other matters set out in the notices should be left for consideration at the close of evidence in the trial. Whether particular evidence is capable of amounting to post-offence conduct is usually left for later consideration, however, in the present case, parties request a ruling on this particular evidence before the empanelment of a jury. The prosecution has indicated that if the evidence is admissible as incriminating conduct, it will be included in the opening of the case to the jury. Furthermore, Mr Kannan has foreshadowed an application for a separate trial, and this ruling is relevant to its determination.
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 outlined the prosecution case in relation to these charges in a previous ruling.[1]
[1]See R v Kannan & Anor (Ruling No 1) [2019] VSC 461R.
The conversations with Sergeant Keenan
As above, this ruling concerns evidence of conversations between both accused and Sergeant Keenan that occurred on 24 and 28 August and 15 September 2015. The prosecution seeks to lead parts of these conversations as incriminating conduct against each accused.
I have thoroughly considered the entirety of these conversations and their contexts, but will briefly summarise them for the purposes of this ruling. I further note that at this stage, the statements of both accused to Sergeant Keenan are all allegations and remain open to challenge at trial.
The conversations of 24 August 2015
On 24 August 2015, Sergeant Keenan attended 3 Gillian Road, Mount Waverley (‘the accused’s residence’) with two other officers, and spoke to both accused. He explained he needed to talk to them regarding the whereabouts of Rajalakshmi Natarajan (‘the complainant’), as she was currently unlawfully in Australia. I note that at this time, and also on 28 August 2015, Victoria Police did not know the complainant had been admitted to Box Hill Hospital.
In response to questions asked, Mrs Kannan stated both accused had organised the complainant’s travel from India in about 2007, and that she had lived with them for about six months, in line with her visa conditions. Mrs Kannan stated the complainant had then been collected from the accused’s residence by another family who were from Darwin or Sydney, and they have not seen her since. Mrs Kannan told Sergeant Keenan she could not offer any additional information as to the location of the complainant.
Sergeant Keenan also spoke directly to Mr Kannan and asked him the whereabouts of Mrs Natarajan, to which he responded he had a heart condition and could not offer any more information.
Sergeant Keenan left both accused his business card and asked them to call him when they had a chance to think about the situation. He then made a number of inquiries that revealed the complainant had no discoverable bank account, landline telephone, or mobile telephone, registered in her name.
The conversations of 28 August 2015
On 28 August 2015, Sergeant Keenan returned to the accused’s residence and spoke to Mr Kannan. Among other things, Mr Kannan stated he sponsored the complainant to travel to Australia in 2007 and that she lived at the accused’s residence and helped care for their three children. Mr Kannan told Sergeant Keenan the complainant stayed with them for four or five months, was treated like a mother and obtained no identification while in the country. He further stated she had told Mr Kannan that relatives had called the house and she wanted to return to them. Mr Kannan said that during her stay, the complainant had come and gone two or three times, staying at friends’ places that he did not know.
Mrs Kannan then entered the room and had a conversation with Sergeant Keenan, during which she stated she had had approximately ten people assist her with the children over the years. Mrs Kannan stated the complainant must have had a return ticket with her, as she did not have it, and made some remarks as to the complainant’s alleged plans to live in India. Mrs Kannan informed Sergeant Keenan she had rung the complainant’s son-in-law in India and he demanded to know where the complainant was and to send her back home. Both accused said they believed the complainant did not want to return home and had a better life in Australia.
The conversations of 15 September 2015
On 11 September 2015, Sergeant Keenan received a call from Peter Lunt, a lawyer acting on behalf both accused. Mr Lunt informed Sergeant Keenan that the accused wanted to apologise for not being truthful in relation to the complainant, and that she had been admitted to Box Hill Hospital on 30 July 2015. Mr Lunt stated the accused were happy to assist police. Subsequently, Sergeant Keenan made enquiries of Box Hill Hospital, but was unable to establish that the complainant was a patient.
On 15 September 2015, Sergeant Keenan spoke to Mr Kannan over the telephone, and asked questions about the complainant’s hospital admission. Mr Kannan apologised for not cooperating at the initial stages, and said he was not home when she was collected by ambulance and was unable to explain why Box Hill Hospital did not have records of her being there.
Sergeant Keenan then spoke to Mrs Kannan over the telephone. Among other remarks, Mrs Kannan stated she told ambulance staff that the complainant’s name was ‘Rajalashsmi’ and that they must have misspelt her surname and believed it may have been recorded as ‘Rangan’. Mrs Kannan told Sergeant Keenan the complainant was in Ward 6.2 at the hospital.
Sergeant Keenan then telephoned Box Hill Hospital and established that the complainant was admitted on 30 July 2015 with a Medicare card under the name of ‘Rangan Rajalakshi’, of 3 Gillian Road, Mount Waverley.
Police visit of 31 July 2015
During the course of preliminary argument, it emerged that on 31 July 2015, the day following the complainant’s hospital admission, at least one member of Victoria Police from the Mount Waverley police station, attended the home of the accused. It appears this was the first time police visited the accused’s residence in relation to the complainant.
The prosecution have made subsequent enquiries as to the circumstances of this visit, but there is very little evidence about what occurred or what may have been said, beyond two written records documenting the fact of the visit. From the entries in these police records that became exhibits 13 and 14, it may be concluded the visit related to the identification of the person known as ‘Rangan Rajalakshmi’, who had become a patient at Box Hill Hospital. I also note that within a series of text messages and correspondence between Mrs Kannan and Box Hill Hospital on 17-18 August 2015, there is reference to a police visit to the accused’s residence on 30 July 2015. This may refer to the same visit in question, however, there remains a scarcity of clear evidence.
In my opinion, there is insufficient evidence upon which safe conclusions can be drawn about the circumstances of this visit, although a fair reading of the electronic evidence bearing on the point at least suggests Mrs Kannan was present and spoke with the police. There appears to be no evidence that Mr Kannan was present, or was aware the visit had occurred. Further, it is unknown what potential impact the visit may have had on the states of mind of either accused, relevant to the later visits by Sergeant Keenan. In all the circumstances, only limited conclusions can be made as to what may have taken place on that occasion in relation to this ruling.
The evidence of Sergeant Keenan
On 25 June 2019, Sergeant Keenan gave evidence on voir dire, confirming the contents of his statement dated 15 December 2015. Throughout evidence‑in‑chief and cross‑examination, Sergeant Keenan repeatedly stated his purpose for attending the accused’s residence was to conduct a welfare check on the complainant, meaning to locate her and check she was safe. Sergeant Keenan gave evidence that at the time of his visits, he did not consider whether an offence had been committed.
On 24 and 28 August 2015, Sergeant Keenan did not know, and was not informed by either accused, that the complainant was in Box Hill Hospital as a patient.
During cross examination, counsel for Mrs Kannan drew attention to two allegations contained in the letter apparently authored by Jawahar Mahalakshmi, that the author’s mother was being ‘harassed’ and ‘kept as a slave’. Sergeant Keenan confirmed he was in possession of this letter and aware of the allegations at the time of these visits, but rejected counsel’s suggestion that the language in the letters caused him to think he was investigating such conduct. Sergeant Keenan stated that based on 20 years of experience as a police officer, ‘people make various comments to get attention or draw more service than what’s required’. Sergeant Keenan maintained he was conducting a welfare check and did not suspect any offence. He gave further evidence that he did not put these allegations to either accused, and stated his concern for the complainant was that she ‘was currently unlawfully in Australia’.
Additionally, during cross‑examination by counsel for Mr Kannan, Sergeant Keenan swore that during his first visit on 24 August 2015, Mr Kannan left the room sometime after his identity was confirmed. Sergeant Keenan was not certain whether Mr Kannan was present when certain information was provided by Mrs Kannan.
I have no reason to reject the evidence of Sergeant Keenan.
Disputed aspects of the notices of incriminating conduct
The Notice dated 8 August 2019 in respect to Mrs Kannan sets out the following in respect of the evidence of conversations to be led from Sergeant Keenan in paragraph [2], to which Mrs Kannan objects:
f)On 24 August 2015 Victoria Police Sergeant Carl Keenan talked to the accused about the whereabouts of the complainant, the accused did not tell him that the complainant was at Box Hill Hospital.
g)On 24 August 2015 the accused lied to Victoria Police Sergeant Carl Keenan when she told him that she had not seen the complainant since about 2007.
h)On 24 August 2015 the accused told further lies and made further statements to give the impression that the lie that the accused had not seen the complainant since about 2007 was true, including:
(i)In 2007 the complainant had lived with them for about 6 months at 3 Gillian Road Waverley;
(ii)The accused, her husband and the complainant had attended a wedding in Sydney at which the complainant met another family, after returning to Melbourne the other family collected the complainant from the Mount Waverley home;
(iii)The accused could not provide the names of the other family members who collected her;
(iv)The accused thought the other family may actually have lived in Darwin and not Sydney;
(v)The accused thought that the other family member could have been the complainant’s sisters husband or brother but she was not really sure;
(vi)The accused could not offer any more information in relation to the whereabouts of the complainant.
i)On 28 August 2015 Victoria Police Sergeant Carl Keenan talked to the accused about the whereabouts of the complainant, the accused did not tell him that the complainant was at Box Hill Hospital. [sic]
j)On 28 August 2015 the accused told further lies and made further statements to give the impression that the lie that the accused had not seen the complainant had since about 2007 when she left the Mount Waverley home was true, including:
(i)When the complainant didn’t return her first thought was that she had to find another carer;
(ii)The complainant must have had a return ticket with her when she left as she did not have it;
(iii)The accused had a Japanese lady, 2 Indians – a total of approximately 10 assistance to assist in looking after the children;
(iv)The complainant told her that she wanted to go back to live with her son not her daughter;
(v)The complainant couldn’t live with her son as they all lived together; and
(vi) The complainant preferred to live with her friends back in India.
In relation to Mr Kannan, the Notice dated 8 August 2019 set out the following in respect of the evidence of Sergeant Keenan in paragraph [2], to which Mr Kannan objects:
a)On 24 August 2015 Victoria Police Sergeant Carl Keenan attended the accused’s home at 3 Gillian Road Mount Waverly [sic] and asked the accused about the whereabouts of the complainant. The accused did not tell the Sergeant that the Complainant was at Box Hill Hospital.
b)On 24 August 2015 the accused lied to Sergeant Keenan when he told Sergeant that he could not offer any more information about the whereabouts of the complainant.
c)On 28 August 2015 Victoria Police Sergeant Carl Keenan attended the accused’s home at 3 Gillian Road Mount Waverly [sic] and asked the accused about the whereabouts of the Complainant. The accused did not tell the Sergeant that the Complainant was at Box Hill Hospital.
d)On 28 August 2015 the accused lied to Sergeant Keenan when he told him that the complainant only stayed with them for about 4 or 5 months.
e)On 28 August 2015 the accused told further lies, and made further statements to give the impression that the lie that the complainant had stayed with them for 4 or 5 months, was true, including:
(i) He was the complainant’s sponsor in 2007;
(ii)The complainant came to their house and that she was caring for his children, cooking and cleaning;
(iii)That the complainant received phone calls when she was at the Mount Waverley home;
(iv) The complainant told him that they were relatives;
(v)The complainant told him that someone called her and that she would like to go with them but she would come back;
(vi)He didn’t ask when the complainant when she would be back; [sic]
(vii) This happened about 2 or 3 times.
The relevant legislation
The admissibility of post-offence conduct is governed by Division 1 of Part 4 of the Jury Directions Act2015 (‘the Act’). Section 18 of the Act provides that for the purposes of Division 1:
“incriminating conduct” means conduct that amounts to an implied admission by the accused –
(a)of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged.
Section 18 of the Act provides that ‘conduct’:
means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the events or events alleged to constitute the offence charged.
Further, s 20 of the Act provides that:
(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless-
(a)the prosecution has given notice in accordance with section 19; and
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
As the trial of the accused is listed to begin on 10 February 2020 and s 19 of the Act requires such a Notice be served at least 28 days prior to the commencement of the trial, I am satisfied the prosecution have complied with the temporal requirements as set out in s 20(1)(a) of the Act.
Additionally, as Mr Kannan makes an additional application for the relevant evidence against him to be excluded, s 137 of the Evidence Act 2008 provides that:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
The defence contentions
Submissions for Mrs Kannan
Counsel for Mrs Kannan submits the alleged lies in paragraph [2](f)-(j) of the Notice are inadmissible as incriminating post-offence conduct as they do not constitute implied admissions that go to the offences charged against Mrs Kannan. It is submitted that s 18 of the Act is clear in this requirement.
Counsel relies on Edwards v The Queen in which Deane, Dawson and Gaudron JJ held that:
the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realisation or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that, “if he tells the truth the truth will convict him”.[2]
[2](‘Edwards’) (1993) 178 CLR 193, 209.
Counsel also refers to the case of R v Ciantar, and draws attention to the observation of the Court of Appeal that:
if an innocent explanation of the post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt.[3]
[3](‘Ciantar’) (2006) 16 VR 26, 48 [72].
For the purposes of the argument, it is conceded that at least some of the statements Mrs Kannan made are untrue. However, it is submitted Mrs Kannan’s statements could only constitute post-offence conduct or incriminating conduct if the reason for which the lies were told was an apprehension or a consciousness of guilt of having committed an offence charged, or an element of an offence charged. It is submitted that on a fair evaluation of the evidence, given the stated purpose of Sergeant Keenan’s questions, and also what was in the mind of Mrs Kannan at the time, it raises the suggestion that Mrs Kannan told lies because she was scared of getting into trouble for harbouring an unlawful person, or because she was protecting a person unlawfully in Australia.
In this regard, it is submitted the evidence of Sergeant Keenan demonstrates his conversations with Mrs Kannan were directed towards establishing the whereabouts of the complainant, as he repeatedly stated in evidence. Further, it is noted Sergeant Keenan had no apprehension that a crime had been committed, nor was any such allegation put to Mrs Kannan and nothing was said about slavery or harassment. It is observed that all Sergeant Keenan remarked was, ‘She’s here unlawfully in Australia, let me ask you some questions’.
Accordingly, it is submitted that every answer subsequent to Sergeant Keenan’s stated reason for having the conversation, demonstrates an apprehension in the mind of Mrs Kannan that he was speaking to her about the complainant’s unlawful status in Australia, not because she was a slave, or had been treated in a particular way connected to slavery. It is therefore argued that Mrs Kannan’s answers to the various questions do not reflect either charge on the indictment and are not relevant to the offences charged, or an element of them, as required by s 18 of the Act. It is submitted that these statements are therefore incapable of constituting incriminating conduct.
It is further submitted that the law is clear that if there is another reasonable basis or hypothesis for the telling of the lie, other than a consciousness of guilt of the offence charged, or an element of the offence charged, I should not grant leave to the prosecution to adduce the evidence. It is argued that in these circumstances, for a jury to be told the statements constitute consciousness of guilt of the offences charged, would be unfair and unsafe.
Additionally, Counsel for Mrs Kannan submits the circumstances of Ciantar[4] differ significantly to those in the present case. It is submitted that when an accused might have lied due to being conscious of potentially having committed a lesser offence, that should be taken to mean a lesser charged offence, or an alternative offence available at law. It is argued that to be regarded as a lesser offence for the purposes of post‑offence conduct, an alternative offence needs to involve a species of conduct that was relatable to the main offence.
[4]Ciantar (n 3).
As above, Counsel submits it is open to conclude that when speaking with Sergeant Keenan, Mrs Kannan was conscious of an entirely different offence that is not a lesser offence of slavery, such as harbouring a person who has overstayed their visa. Accordingly, it is submitted that the offence of harbouring bears only a tangential relationship to slavery offences, and is entirely different in nature. Counsel submits Mrs Kannan did not possess the requisite nature of consciousness required for her statements to be adduced as post‑offence incriminating conduct.
Submissions for Mr Kannan
Counsel for Mr Kannan adopts the submissions advanced on behalf of Mrs Kannan. It is submitted it would have been reasonable for Mr Kannan to think the complainant was at risk of being in trouble as a person unlawfully in Australia, which may have resulted in her deportation or prosecution. Counsel emphasises Sergeant Keenan never used the word ‘slavery’ in his discussions with either accused, and observes that notes made by one of the accompanying police officers referred to their attendance relating to ‘immigration enquiries’. Accordingly, it is argued that unlike the accused in Di Giorgio v The Queen[5] who knew he had committed a sexual offence, there is no evidence to suggest that Mr Kannan knew he had committed the offence of slavery.
[5](‘Di Giorgio’) [2016] VSCA 335.
Additionally, it is submitted that given the circumstances, the privilege against self‑incrimination applied to Mr Kannan, and further, he had no obligation to speak to the police in any event.
Counsel submits it is unclear from the evidence of Sergeant Keenan whether Mr Kannan was present during the conversations had been held with Mrs Kannan. It is also argued it is unclear which statements can actually be attributed to Mr Kannan. While conceded Mr Kannan knew the complainant had been taken to Box Hill Hospital, it is submitted his statements to police were not incriminating of the offence of slavery. It is submitted that when assessing the whole of the evidence, as required by s 20 of the Act, there is no evidence as to the degree of communication between the accused following the complainant’s admission to hospital, and no evidence as to the extent of Mr Kannan’s knowledge regarding any communications that had taken place between Mrs Kannan and the hospital. Therefore, it is submitted that in the absence of such evidence, it is not possible to attribute Mrs Kannan’s potential knowledge to Mr Kannan. It is further observed there is no medical evidence as to how long the complainant had been unwell prior to 30 July 2015, and no evidence about the extent of daily interaction between herself and Mr Kannan.
It is also noted that on 24 August 2015, Mr Kannan told Sergeant Keenan he had a heart condition and could not offer any more information. It is submitted this statement is simply not detailed enough to enable a conclusion of incriminating conduct. Counsel refers to the cases of R v Russo[6] and Johnstone v The Queen,[7] and compares the degree of detail conveyed to police in those cases, to the lack of detail provided by Mr Kannan. Counsel refers to the requirement that the statement made by Mr Kannan would have to represent a deliberate omission of fact, to be incriminating.
[6]R v Russo (No 2) [2006] VSCA 297.
[7](‘Johnstone’) (2011) 31 VR 320.
Additionally, Counsel argues that pursuant to s 137 of the Evidence Act 2008, there is an unfair risk that when presented with this brief response as incriminating conduct, the jury might speculate as to whether he was protecting himself or his wife. Counsel argues the evidence is not only capable of being highly prejudicial, but also presents difficulties as to how to direct the jury as to its proper use. Counsel argues the probative value of the words uttered by Mr Kannan are low, and is outweighed by the danger of unfair prejudice to him. Accordingly, an additional application is made on behalf of Mr Kannan, submitting the Court must refuse to admit the evidence sought to be adduced by the prosecution pursuant to s 137 of the Evidence Act 2008.
The prosecution’s contentions
The prosecution submits the evidence of the alleged lies need only be considered ‘reasonably capable’ of being viewed by the jury as evidence of incriminating conduct. It is submitted the exercise required by s 20 of the Act does not provide that the evidence must only be able to be viewed as incriminating conduct.
The prosecution refers to the decision of R v Robb (Ruling No 2).[8] In that case, Rush J observed that:
evidence of incriminating post-offence conduct should not be admissible in circumstances where ‘an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt or if the post-offence conduct is intractably neutral’.
[8](’Robb’) [2015] VSC 481 [17] quoting Ciantar (n 3), 48 [72].
Furthermore, the prosecution notes his Honour held that:
Importantly, ‘a jury may have regard to lies and post-offence conduct without being satisfied that there are no other potential explanations for them apart from guilt of the offence which is charged’. Therefore, it cannot be my role to exclude evidence on the basis that there are reasonable explanations for this conduct, other than it is indicative of the accused’s consciousness of guilt.[9]
[9][2015] VSC 481 [18] quoting Ciantar (n 3), 42 [52].
It is submitted that the evidence under challenge is reasonably capable of being incriminating conduct for the particular offence with which the accused have been charged. The prosecution argues it is open for me to conclude both accused were attempting to distance themselves from any connection to a person they knew was in the country illegally, whose visa they controlled, and whose passport and other identification documents they had taken, each of which the prosecution alleges are indicia of slavery. It is further submitted that in those circumstances, the accused realised any connection with the complainant, given her physical condition and circumstances in which she was admitted to hospital, would be incriminating of the offences with which they have now been charged. The prosecution submits the fact Sergeant Keenan did not mention the word ‘slavery’ is irrelevant, and rather, the representations and omissions of the accused are implied admissions going to the elements of the offences charged.
Competing hypotheses
The prosecution recognises an argument exists as to an alternative hypothesis that both accused may have been concerned immigration authorities could become involved and the complainant deported. Further, the prosecution acknowledges the accused may have been concerned about an allegation they were complicit in her unlawful conduct in Australia. However, the prosecution submits this does not necessarily involve an innocent explanation which is so inherently likely that a jury could not properly regard the lie as evidence of guilt.[10]
[10]See, eg, Ciantar (n 3), 48 [72].
The prosecution refers to various authorities that considered similar issues. The prosecution notes the case of R v Cook[11] and submits that while there may be the possibility of competing inferences, there is no evidentiary basis on which I could act, as neither accused gave evidence on a voir dire. It is submitted defence suggestions as to the existence of alternative hypotheses are merely assertions from the bar table, with no grounding in referrable evidence. The prosecution submits that the decision in Cook was confirmed in R v Burton.[12]
[11](‘Cook’) [2004] NSWCCA 52.
[12](2013) 237 A Crim R 238.
It is submitted that despite the possibility of an alternative hypothesis as to the accused’s mindsets at the time of the conversations, this is a matter for the jury to determine once the whole of the evidence is heard. It is argued this situation is anticipated by the Act, as ss 21-23 specify directions the jury that must be given and further discretionary directions. It is submitted that when read together, these provisions anticipate that competing hypotheses, inferences or constructions, may be raised on the challenged evidence during a trial. With particular reference to this case, the prosecution submits it is sufficient the disputed evidence is reasonably capable of being incriminating conduct, and as notice has been provided, the prosecution should be permitted to place it before the jury.
Further, addressing the defence argument that there may be an additional competing inference that is open, being that Mr Kannan was seeking to protect Mrs Kannan when speaking with Sergeant Keenan, the prosecution submits that the Court is obliged to take the Crown case at its highest when making a determination pursuant to s 137 of the Evidence Act 2008. It is submitted this is consistent with the recent Court of Appeal decision of Byrd v The Queen.[13] The prosecution again refers to the additional directions that may be given to the jury, pursuant to s 22 of the Act, and that any possible prejudice to the accused would be covered by such a direction.
[13][2018] VSCA 42.
Consciousness of the accused
In response to the arguments for Mrs Kannan outlined in [41]-[42] above, the prosecution submits that in Ciantar, the matter involved a culpable driving charge and there were no lesser offences charged or left to the jury, despite the appellant’s conduct arguably giving rise to charges for offences such as careless driving and failing to stop after an accident.[14] It is submitted that a proper understanding of Ciantar does not support the submission made for the accused, and that an offence of harbouring an unlawful citizen, an immigration offence, or anything similar, could come under the umbrella of a lesser offence as described in Ciantar.[15]
[14]Ciantar (n 3), 39 [37].
[15]Ciantar (n 3).
The false trail evidence
The prosecution further argues the lies told by the accused were designed to create a false trail of evidence. Referring to R v Chang, the prosecution notes Charles JA concluded that after the murdering the deceased, the accused engaged in post-offence conduct that included careful preparation for flight, which was part of a detailed scheme to lay a false trail.[16] The intention of these acts was to mislead the victim’s family. The prosecution submits that on 24 August 2015, when Mrs Kannan elaborated and fabricated a supporting narrative to a baseline lie, she engaged in conduct akin to the incriminating conduct discussed by Charles JA in Chang.[17] It is submitted the lie that Mrs Kannan had not seen the complainant since 2007 was made more believable because of the creation of a surrounding narrative. The prosecution submits the narrative was to deter Sergeant Keenan from enquiries he might make, aiming to divert his attention to the suggestion that the complainant was in Sydney, Darwin, or with other people.
[16](‘Chang’) (2003) 7 VR 236, 251 [39], 253 [43].
[17]Ibid.
The prosecution also relies on the case of R v Loader.[18] In a case of murder, the accused engaged in a course of conduct aimed at creating a false impression that the two deceased were still alive and that he was unaware where they were.[19] It is submitted that as above, the conduct of both accused represents similar attempts to create a false trail of evidence.
[18](2004) 89 SASR 204.
[19]Ibid.
The prosecution also argued that while neither accused made detailed remarks to Sergeant Keenan initially, by the second set of conversation on 28 August 2015, their stories had become more complex. It is submitted it is open to conclude they engaged in a more positive attempt at subverting the police on this occasion.
Omissions
In the Notice regarding Mrs Kannan, sub-paragraphs [2](f) and (i) allege the accused omitted to tell Sergeant Keenan the complainant was at Box Hill Hospital when he discussed her location. The same allegation is reflected in sub-paragraphs [2](a) and (c) of the Notice regarding Mr Kannan.
In respect to the submission on behalf of Mrs Kannan that it is novel for post‑offence incriminating conduct to include omissions, the prosecution notes the definition of ‘conduct’ contained in s 18 of the Act. The prosecution further refers to the decisions of R v Cuenco[20] and Johnstone.[21]
[20](‘Cuenco’) (2007) 16 VR 118.
[21]Johnstone (n 7).
The prosecution relies on observations of Nettle JA in Cuenco, where his Honour held that whilst it was forbidden to use the silence of an accused after caution as an admission which could itself provide evidence against them, that did not mean the deliberate omission of facts from a statement made by an accused to police could never be treated as indicative of guilt.[22] Nettle JA remarked on the possibility that a conscious omission of events from a detailed account that an accused provided, may itself provide a basis for drawing the inference of a consciousness of guilt.[23]
[22]Cuenco (n 20), 124 [20].
[23]Ibid.
The prosecution also refers to Johnstone, in which the appellant alleged there was an error in the trial judge’s conclusion that the alleged lies in the record of interview were capable of being relied on as a consciousness of guilt of murder.[24] The Court of Appeal concluded that when read in the context of the whole interview, it was reasonably open to the jury to find the applicant’s omission capable of supporting the inference that he lied because he was aware that at the time of the assault, he had intended to kill or seriously injure the victim.[25]
[24]Johnstone (n 7).
[25]Ibid, 329 [52].
Accordingly, the prosecution submits the omissions of both accused are capable of being used as incriminating conduct. The prosecution notes that when spoken to by Sergeant Keenan, neither accused were suspected of having committed offences, and in that context, they participated in conversations and gave an amount of detail about the complainant, but did not inform him of the very straightforward answer that she was then at Box Hill Hospital. It is submitted these omissions need to be properly evaluated among the series of other alleged lies or combination of representations, designed to create a false trail in the police enquiries. It is submitted when the whole of the evidence is considered, these omissions are reasonably capable of being viewed by the jury as evidence of incriminating conduct, along with other disputed evidence.
Further, the prosecution rejects the argument advanced on behalf of Mr Kannan that he had the privilege against self‑incrimination, and had no obligation to give Sergeant Keenan any information. The prosecution submits that when Mr Kannan stated he could not offer any more information on 24 August 2015, he was not expressing a right not to speak, but rather, was asserting ignorance in circumstances where the simple answer was that the complainant was at Box Hill Hospital.
The evidence as a whole
Finally, the prosecution emphasises that in the resolution of this application, I am obliged to take into account the evidence as a whole, pursuant to s 20 of the Act. In this regard, it is to be noted the prosecution case is, to a significant degree, a circumstantial one.
The prosecution directs me to the context of evidence contained within the hospital records which demonstrate the poor condition of the complainant, including her weight loss, the wounds on her feet, and other aspects of her ill‑health. The prosecution notes the circumstances surrounding 24 August 2015, including statements made by Mrs Kannan admitting her knowledge of the medical condition of the complainant leading up to 24 August 2015. The prosecution argues the statements to Sergeant Keenan need to be evaluated in the context of the accused’s contemporaneous knowledge as to the location of the complainant and her state of poor health. It is submitted I should examine the statements of Mrs Kannan to other individuals between 30 July 2015 and 24 August 2015 in my assessment of the whole of the evidence as it is admissible against her.
It is ultimately submitted that when taking into account the evidence as a whole, the inevitable outcome must be that the evidence of the relevant lies told to Sergeant Keenan, are reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Conclusion as to post-offence incriminating conduct
Can the statements of both accused be accepted as lies?
On all the evidence presently available, I am of the opinion it is open for the jury to accept that each of the alleged statements made by the accused, as set out in the excerpts of the Notices of Incriminating Conduct above, are lies. There is a significant body of evidence independent of that contained in the Notices, that can be relied on to establish that the alleged statements are false. This evidence includes matters set out in the detailed Crown Opening, including:
(a) the evidence of the complainant as contained in the six VAREs;
(b) statements made by Mrs Kannan, as admissible against her, to various people, including a triple 000 telephone operator, ambulance officers, and staff at Box Hill Hospital;
(c) various communications passing between Ms Natarajan’s relatives in India to Mrs Kannan, establishing her knowledge of the complainant’s family and their contact details;
(d) the evidence of the neighbour who on occasions saw and spoke to a woman fitting the description of the complainant at the premises, and conversations between Mrs Kannan and the neighbour about the complainant;
(e) the serious medical condition of the complainant at the time she was admitted to hospital; and
(f) written statements and representations made to other people, by each accused, through various media, including by computer, and on telephones.
Further, I am satisfied it is open to conclude each accused separately omitted to tell Sergeant Keenan material facts as to the location of the complainant on 24 August 2015 and 28 August 2015, in circumstances where both knew where she was. I am also of the opinion it will be open to the jury to conclude each accused provided a false narrative around a number of lies, the intention being to support those lies and make them more believable. I accept the submissions of the prosecution that the omissions and attempts to lay a false trail are open to be accepted as being made by both accused to create impressions that they were actually truthful statements.
I also take into account the statements made by both accused to Sergeant Keenan during the telephone conversation on 15 September 2015. Some of the statements made can be used in the assessment of whether earlier statements made on 24 August 2015 and 28 August 2015 were untrue.
It is important to observe that the foregoing description is inadequate to describe the totality of the evidence comprising the prosecution case, being a circumstantial one comprising of many pieces of evidence, and the inferences to be drawn from the combination of facts arising from those pieces of evidence. The prosecution case is of broad compass.
Requirement that the lies relate to the offences charged
Section 18 of the Act makes it clear that incriminating conduct for the purposes of Division 1 of Part 4 of the Act relates to conduct amounting to an implied admission by the accused of having committed an offence charged, or an element of an offence charged, including an alternative offence.
Much of the argument in this application concerns whether the lies told by the accused must relate to an offence brought to their attention at the time of their telling. In effect, it is submitted by both accused that to comply with the definition and be put before the jury as incriminating conduct, an accused being questioned must have been put on notice of the charge eventually brought before the court, so that it may be concluded the lies told relate only to an offence charged, or an alternative. It is clear that Sergeant Keenan did not raise the issue of slavery, or elements of the offences ultimately charged during any of the relevant conversations.
In my opinion the primary submissions of the defence in this regard must be rejected. To be led as post-offence conduct, it is not necessary that a person against whom an incriminating post‑offence lie is alleged, is explicitly informed about the eventual charge, or an alternative of it, at the time the alleged lie is told. What is required pursuant to s 21 of the Act, is that a jury be directed that it may treat the evidence as evidence the accused believed that she or he had committed the offence charged or an element of it, only if it concludes that the conduct occurred, and that the only reasonable explanation of the conduct is that the accused held that belief, namely, that she or he had committed the offence charged, or an element of it.
In Di Giorgio, a case of rape and indecent assault, the trial judge allowed evidence of an alleged post-offence lie told by the appellant to his employer, in the context of a discussion in which the employer told the appellant there had been an allegation of improper conduct made by the complainant.[26] In the appeal following conviction, the appellant submitted the lie was incapable of being viewed as an implied admission to any of the offences charged, or to any element of those offences.[27] At the trial the question arose whether the accused had been made aware of the allegations by the complainant, either generally or specifically, and whether it could be argued the lie was directed towards a material issue. It was argued by the appellant that he was only told by the employer that the complaint involved sexual allegations and improper conduct, and was not given any precise details of the allegations before he told the alleged lie. The argument for the appellant was that he had to be made aware of the nature of the allegations made by the complainant in order for the lie to constitute an admission that he had committed one or more of the offences charged. Thus, not being confronted with the complainant’s allegations, it was submitted the lie was too general in nature to be relevant under section 20(1)(b) of the Act.
[26]Di Giorgio (n 5).
[27]Ibid.
The Court of Appeal rejected the appellant’s submission, concluding it rested on a misconception of the basis upon which the lie or other incriminating conduct may exhibit an implied admission. The Court held:
Lies and post‑offence conduct are a species of circumstantial evidence. Whether a statement proved to be false is capable of demonstrating a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend upon ‘the terms of the statement, the circumstances in which it is made, the nature of the offence charged and the other evidence in the case’. The incriminating post‑offence conduct and other evidence must be capable of supporting the inference that the accused was aware that he had committed the offence charged.[28]
[28]Ibid [26] referencing Edwards (n 2), 201; Ciantar (n 3), 40 [44].
It was further observed that:
The fact that the applicant was not provided with the detail of the complainant’s allegations, does not inform the question of the applicant’s belief. It is the accused’s knowledge that he committed the offence and that the truth would implicate the accused in the offence that supports consciousness of guilt reasoning. The inference is not dependent upon the accused having been informed of the details of the alleged offence before the post offence incriminating conduct occurs.
An inference of an implied admission may be drawn from flight, concealment of evidence, false alibis, lies, and other forms of post‑offence conduct. Incriminating conduct often occurs before any investigation is underway, or before the investigator informs the accused of what is alleged against him. If the evidence, direct or circumstantial, links the accused to the charged offence, the jury may draw conclusions as to his state of knowledge which in turn will inform the question of his belief. It is his knowledge of the conduct comprising the charged offence that is relied upon by the prosecution to explain why the post offence incriminating conduct occurred. It is the accused’s knowledge of the offence that provides the foundation for the inference. As counsel for the Director submits, there could be no doubt that the applicant knew when he was being questioned, albeit that the enquiries were only as to misconduct of a sexual nature, that he knew the detail of what occurred in the motel room. The relevance of his denial of an opportunity to commit any offence was informed by the applicant’s knowledge of what occurred in the motel room not by the extent to which facts were posited in the questions he was asked.[29]
[29]Ibid [28]-[29].
In my opinion the above reasoning is apposite to the present case. The evidence is that Sergeant Keenan informed both accused his inquiries concerned the whereabouts of the complainant. Both accused knew exactly where the complainant was, but failed to inform him of her location, nor her state of health. While Sergeant Keenan did not inform the accused of an allegation or suggestion that they may have been implicated in charges of slavery, it is far too simplistic to regard that as being the end of the matter and determinative of this application.
To return to Edwards, in considering an alleged lie, it is appropriate to consider, ‘the terms of the statement, the circumstances in which it is made, the nature of the offence charged and the other evidence in the case’.[30]
[30]Edwards (n 2), 201.
In the present case, the evidence is capable of demonstrating both accused and the complainant had been in a relationship of approximately a decade, with the majority of that time involving the complainant residing with the accused and their three children, inside the accused’s family home, and at close quarters on a daily domestic basis. The evidence of the complainant, if accepted, is capable of demonstrating a lengthy period of physical and mental abuse within a family setting, where she became reduced to a life threatening physical condition, for which she was transported to hospital in a medical emergency, including for physical emaciation, sepsis, and diabetes. At the time of their conversations with Sergeant Keenan both accused possessed years of knowledge and experience of the complainant, the circumstances of her living and working within their household, their day to treatment of her, that she had become seriously unwell and had been transported to Box Hill Hospital. It is that type of information and knowledge that informed their beliefs at the time they spoke to Sergeant Keenan, and allegedly told him lies.
On the basis of the brief of evidence, I am of the opinion it is open for the jury to conclude the only reasonable explanation for why each accused lied to Sergeant Keenan, as well as omitting material facts, was because they had knowledge of their conduct comprising the charged offences. As observed by the Court of Appeal in Di Giorgio, ‘incriminating conduct often occurs before any investigation is underway, or before the investigator informs the accused of what is alleged against him’.[31] Accepting this statement, the submission that an accused must have the offence ultimately charged brought to their attention at the time the lie is told must be rejected.
[31]Ibid.
I am fortified in this conclusion by reference to the definition of incriminating conduct, as contained in s 18 of the Act. The provision refers to the relevant incriminating conduct as ‘having committed an offence charged, or an element of an offence charged’ (emphasis added). The definition is not cast in terms of having committed the offence charged, or an element of the offence charged. In my opinion there is no requirement that the accused must have been responding to questions asked about the offences eventually charged, in order for the lies to be adduced as post-offence incriminating conduct. However, once the determination under s 20 is made and the evidence is placed before a jury, s 21 of the Act mandates a direction must then be given which encompasses the requirement that the evidence relates to the offence charged, or an element of the offence charged.
Is the evidence reasonably capable of being incriminating conduct?
Role of the judge
By virtue of s 20(1)(b) of the Act a trial judge is required to make a determination of on the basis of the evidence as a whole, whether the evidence of the conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct. In large part, at this early stage of the proceedings, this assessment must be made on the basis of my examination of the evidence within the prosecution brief, further informed by any relevant submissions and observations made during the course of pre-trial arguments.
Given the nature of the prosecution case, an assessment of the evidence as a whole is significant task to undertake. In large part, the prosecution case is dependent on the evidence of the complainant being accepted, but as explained above, also comprises a significant circumstantial case, involving a wide range of evidence.
Separate consideration of evidence against each accused
In considering this application, I have kept in mind that the prosecution brings separate cases against each accused. Accordingly the cases against each accused, and the assessment of the disputed evidence under s 20 of the Act, must take place on the basis of the evidence properly and separately admissible against each.
Presently, the prosecution have identified which evidence is allegedly admissible in both cases, as distinct from that which is discreetly admissible against one accused and not the other. This is summarised in the prosecution’s 14-page document entitled, ‘CROWN DETAILED EVIDENCE DOCUMENT’, to which is attached two schedules entitled, ‘TABLE OF ELECTRONIC EVIDENCE ADMISSIBLE AGAINST KUMITHINI [sic] KANNAN’ and ‘TABLE OF ELECTRONIC EVIDENCE ADMISSIBLE AGAINST KANDASAMY KANNAN’. While the defence filed a responsive document outlining areas of evidentiary dispute, at this point of the proceedings only limited argument has been held as to what areas of the evidence may or may not be admissible against both accused or against each separately.
Accordingly, in the resolution of my assessment of the whole of the evidence, I will approach the determination on the basis of the assertions by the prosecution in their primary document as to which evidence is admissible against which accused. I conclude as follows:
(a) As to the evidence claimed to be admissible against both accused the prosecution relies on the evidence described in paragraphs: 2-7, 12, 14, 16, 17, 18, 20, 21, 22, 23, 28, 30, 37, 38, 42, 43, 44, 46, 47, and 48.
(b) As to the evidence claimed to be admissible against Mrs Kannan solely, the prosecution relies on the pieces of evidence described in paragraphs: 9, 10, 11, 15, 19, 24, 25, 26, 27, 29, 31, 33, 35, 36, 39, and 41.
(c) As to the evidence claimed to be admissible against Mr Kannan solely, the prosecution relies on the pieces of evidence described in paragraphs: 32 and 34.
The evidence suggested to be admissible against each accused individually is of course to be considered along with those pieces of the same evidence admissible against both accused.
I note that at paragraph [8] of the ‘CROWN DETAILED EVIDENCE DOCUMENT’, reference is made to the six VAREs which form the evidence‑in‑chief proposed to be led from the complainant. This extensive body of evidence contains a detailed narrative regarding the period the complainant resided with the accused, and events that allegedly occurred. Throughout these VAREs, the complainant provides some evidence that is clearly admissible against both accused, and some evidence that is only admissible against one accused. In an attempt to allocate which pieces of the same evidence are admissible against both accused and which are exclusively admissible against one, the prosecution filed an untitled document, best referred to as ‘the evidence table’. This extensive table comprises some 156 pages with 142 entries, containing detailed references to material within each of the six VAREs, as well as other evidence bearing on the overall subject matter. The document is predicated on the basis of the suggested relevance of facts, and the proof of those facts. Further, the suggested bases of admissibility are set out, examples being, direct evidence or circumstantial evidence against both accused, or one or the other separately.
It is also important to note that although relying on materials filed by the prosecution for present purposes, as trial judge I have presided over some 36 days of pre-trial argument, a number of which have canvassed and discussed aspects of the evidence in the trial. Apart from reading the entirety of the briefed materials, I have also read and considered much of the evidence over that pre-trial period in light of the submissions made. This preliminary argument has also included a detailed examination of the six VAREs. In my opinion, in carrying out the assessment required, it is appropriate to engage my knowledge of the case gained as a result of the pre-trial arguments, as well as my consideration of all the materials placed before me, to assist in the resolution of the determination to be made.
The determination pursuant to s 20 of the Act
Returning to the application to be decided, in my opinion, pursuant to the requirements of s 20 of the Act, the pieces of disputed evidence summarised in the notices of incriminating conduct are reasonably capable of being viewed by the jury as evidence of incriminating conduct in respect of each accused individually. To employ some of the observations made in Di Giorgio,[32] I am of the opinion that, the incriminating post‑offence conduct and other evidence is capable of supporting the conclusion that each accused was aware they had committed an offence charged.
[32]Di Giorgio (n 5).
The Court of Appeal in Ciantar concluded:
So, if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect. Similarly, where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.[33]
[33]Ciantar (n 3), 48 [72].
The preceding passage is confirmative of the approach to be taken. I am not of the opinion that any innocent explanation of the alleged post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or that the post-offence conduct is intractably neutral. Furthermore, the submission advanced that the indictment comprising two charges would create uncertainty about which charge the proposed post-offence conduct would relate to, cannot be sustained.
It is sufficient that each of the accused knew that the complainant possessed the qualities that allegedly made her a slave, and intended to possess her and use as they did.
I refuse the application of both accused and will allow the prosecution to lead the relevant evidence as post-offence incriminating conduct.
Conclusion as to application pursuant to s 137 of the Evidence Act 2008
As above, counsel for Mr Kannan argues that should I conclude the disputed evidence can be adduced as post-offence incriminating conduct against Mr Kannan, it should be excluded from the jury’s consideration due to its probative value being outweighed by the danger of unfair prejudice to him, pursuant to s 137 of the Evidence Act 2008. This submission was focused on the argument that there was a danger that in a joint trial, the jury might speculate that Mr Kannan lied to Sergeant Keenan to protect his wife, thereby representing unfair prejudice to him.
In considering this application I have had regard to all the conversations that Mr Kannan had with Sergeant Keenan. I disagree with the defence submission that any of the evidence is of low probative value, and further disagree that there is a danger of unfair prejudice towards Mr Kannan. The representations of Mr Kannan on 24 August 2015 are brief but nevertheless very significant in my opinion. The circumstances of the visit by Sergeant Keenan are well understood. In my opinion Mr Kannan’s failure to inform Sergeant Kennan of her whereabouts, is capable of representing a powerful piece of evidence of an incriminating nature, and is far from being evidence that results in danger of unfair prejudice to the accused. There is in my view, nothing unfair about the evidence sought to be led.
Therefore, this further application by counsel for Mr Kannan is also refused.
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