R v Kannan (Ruling No 3) - [2019] VSC 797

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2018 0063
S CR 2018 0064

THE QUEEN

KUMUTHINI KANNAN

and

KANDASAMY KANNAN

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kannan (Ruling No 3)

Details

AGLC: R v Kannan (Ruling No 3) [2019] VSC 797
Case: [2019] VSC 797
Decision Date: 5 December 2019

CaseChat Overview and Summary

In the case of R v Kannan (Ruling No 3), the defendant, Kannan, faced charges of intentionally possessing a slave and exercising over a slave any of the powers attaching to the right of ownership. The case was heard in the criminal court, where the primary focus was on the admissibility of certain evidence presented by the prosecution. The court was tasked with determining whether certain statements and actions taken by Kannan post-offence constituted admissible evidence under the Evidence Act 2008, and whether they should be excluded on the grounds of unfair prejudice under the Jury Directions Act 2015.

The central legal issues before the court revolved around the admissibility of post-offence incriminating conduct and the balance between the probative value of such evidence and its potential to unfairly prejudice the jury. The court had to consider whether the statements and actions of Kannan following the alleged offence were relevant and probative of his guilt and, if so, whether their prejudicial effect outweighed their probative value. The court also had to address a subsequent application to exclude the evidence on the grounds of unfair prejudice, and whether such exclusion was warranted under the relevant legislative framework.

In its ruling, the court held that the post-offence incriminating conduct, including alleged lies and omissions by Kannan, was admissible as it was relevant and probative of his guilt. The court found that the probative value of this evidence outweighed any prejudicial effect it might have on the jury. Furthermore, the court dismissed the application to exclude the evidence on the grounds of unfair prejudice, holding that the potential prejudice did not render the evidence inadmissible under the Jury Directions Act 2015. The court's reasoning was grounded in a thorough analysis of the statutory provisions and the principles of evidence law, ensuring that the evidence was properly weighed and balanced against the rights of the defendant.

The final orders of the court were that the evidence of post-offence incriminating conduct, including the alleged lies and omissions by Kannan, was to be admitted in the trial. The court's decision was based on a careful application of the statutory provisions and principles of evidence law, ensuring that the evidence was relevant, probative, and did not unfairly prejudice the jury. This ruling sets a precedent for similar cases involving post-offence incriminating conduct and the admissibility of such evidence.

Orders