R v Kannan (Ruling No 4)

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:	15 July 2019
DATE OF RULING:	5 December 2019
CASE MAY BE CITED AS:	R v Kannan & Anor (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2019] VSC 798

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CRIMINAL LAW – Ruling – Electronic evidence – SMSs, Internet browsing, voicemails – Defence dispute relevance – Allege probative value outweighed by prejudicial effect – Certain items of evidence determined to be relevant and admissible – Some items inadmissible – 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 evidence sought to be led by the prosecution as to Kumuthini Kannan’s (‘Mrs Kannan’) telephone and Internet use. The prosecution submits the evidence is relevant in various ways, as outlined below.

Mrs Kannan does not dispute the attribution of this evidence, conceding she sent or received such messages and engaged in the relevant Internet activity. However, counsel for Mrs Kannan objects to the admissibility of some of this evidence, arguing it is irrelevant and/or unfairly prejudicial.

I note that in this ruling, any reference to ‘the defence’ only refers to Mrs Kannan. The prosecution informed the Court that it only seeks to adduce the relevant evidence in the case against Mrs Kannan, and therefore, Kandasamy Kannan, (‘Mr Kannan’) did not make submissions regarding this argument.

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 disputed evidence

The evidence subject to this ruling is annexed to this ruling as Annexure 1, and will be collectively referred to as ‘the electronic evidence’. It consists of SMSs sent and received by Mrs Kannan, voicemail messages, Internet searches and browsing history. Parties have agreed that a number of items of electronic evidence will be led in evidence, and Annexure 1 only contains items that remain in dispute.

This ruling will identify individual pieces of electronic evidence using the item numbers contained in Annexure 1. I note there are two emails allegedly sent by Mrs Kannan that may be disputed by the defence, however, at the time of this ruling, they are subject to further consideration and argument.

The applicable legislation

Part 3.1 of the Evidence Act 2008 (Vic) (‘the Act’) outlines the requirement that evidence must be relevant to be admissible. In particular, s 55 of the Act states:

(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)       the credibility of a witness; or
(b)       the admissibility of other evidence; or
(c)       a failure to adduce evidence.

Section 56 addresses the admissibility of such evidence as follows:

(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.

Additionally, the defence draws attention to s 137 of the Act, that provides:

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.

Outline of argument

The prosecution submits the electronic evidence is relevant pursuant to s 55 of the Act, and argues that each item is relevant for at least one of the following six reasons:

(a) proof that the complainant was residing with the accused at the relevant time;

(b) demonstrative of the type of work or tasks the complainant performed for Mrs Kannan;

(c) corroboration of the content of some of the comments made by the complainant to others;

(d) evidence of the control exerted by Mrs Kannan over the complainant’s health, both physical and mental, being an element of the offences charged;

(e) evidence of the control exerted by Mrs Kannan over the complainant’s movements and knowledge of her visa status; and

(f) evidence of relevant money transfers.

Upon hearing argument, Dr Boas, counsel for the defence, stated his client admitted the complainant resided with the accused in her family home, being the first category of alleged relevance. Therefore, given the items of evidence disputed by the defence, argument was focused on categories (d) and (e), as identified above.

Evidence alleged to demonstrate control exerted by Mrs Kannan over the complainant’s physical and mental health
Prosecution submissions

The prosecution submits items 1, 4-15, 20-30, 32-38,[2] are all relevant for the aforementioned purpose. It is argued these items demonstrate Mrs Kannan’s ongoing control of, or responsibility for, the complainant’s health. In this regard, the prosecution submits this evidence shows Mrs Kannan was the sole contact for Box Hill Hospital (‘the hospital’) in relation to the complainant and her medical care. Further, it is submitted it can be inferred from this evidence that the complainant had no other family or friends in Australia.
[2]Annexure 1.

The prosecution notes the complainant was admitted to the hospital on 30 July 2015, and items 20-23 show Mrs Kannan was still ‘holding herself out as the contact’ approximately one month later on 28 August 2015. While not expressing any preliminary conclusions as to the accuracy of this submission, I note that subsequent items of evidence dating up to 10 September 2015, also show communication from Mrs Kannan to the hospital, of a similar kind.

Acknowledging the majority of this electronic evidence post-dates the complainant’s residence with the accused, the prosecution submits Mrs Kannan’s behaviour reflected in this evidence ‘informs and confirms the earlier control and the earlier relationship’. It is submitted this is consistent with authorities such as Harriman v R,[3] and this evidence is relevant to show the relationship or the character of the pre‑association between Mrs Kannan and the complainant.
[3](1989) 167 CLR 590.

The prosecution further submits these items of evidence demonstrate Mrs Kannan ‘not really taking any interest or doing anything’ in relation to the complainant’s health, allegedly at odds with her protestations that the complainant was ‘a much loved family member’.

Defence submissions

The defence disputes the submission that Mrs Kannan’s identification as a contact person demonstrates she was responsible for the complainant and had control over her health. The defence objects to the prosecution’s argument that this evidence can be relied upon to establish an element of slavery.

Further, the defence submits it would be unfairly prejudicial for the prosecution to invite the jury to draw ‘fairly serious’ conclusions as to the alleged mistreatment of the complainant by Mrs Kannan by reference to items 4-7. It is submitted this proposed use of the evidence would be in breach of s 137 of the Act.

The defence remarks that such evidence could possibly form a tendency argument as to an alleged tendency for Mrs Kannan to act in a way that is callous as to the condition of the complainant, but that no tendency notices have been filed by the prosecution. It is submitted that such an argument would be contested in any event.

Additionally, the defence submits that the threat contained in item 6, being that the hospital would contact the police, is highly prejudicial.

In relation to items 8-13, the defence acknowledges hospital staff referred to the complainant by the incorrect name, but submits it is of no real significance that Mrs Kannan failed to correct them, as she was simply responding to various substantive questions in this exchange. It is submitted these items are similarly irrelevant as above, but if determined to be relevant, they are unfairly prejudicial pursuant to s 137 of the Act. The defence submits the unfair prejudice is due to the prosecution’s invitation to the jury to conclude Mrs Kannan controlled the complainant in a manner relevant to the exercise of slavery.

In relation to the remaining items of evidence in this category, the defence maintains they are not relevant and not demonstrative of Mrs Kannan having control over the complainant’s health. It is further submitted much of this electronic evidence is simply Mrs Kannan explaining her personal and family circumstances in relation to the difficulties in communication.

Evidence alleged to demonstrate control exerted by Mrs Kannan over the complainant’s movement and knowledge of her visa status
Prosecution submissions

The prosecution submits items 2-3, 16-19, 24, 39-41[4] are all relevant for the aforementioned purpose.
[4]Annexure 1.

In relation to items 2-3 which occurred at 4.21pm on 30 July 2015, the prosecution argues Mrs Kannan engaged in this Internet activity after discovering the complainant on the bathroom floor unwell and lying in her own urine, but before calling 000 for an ambulance at 6.05pm. It is submitted this timing is apparent from the transcript of Mrs Kannan’s 000 call. The prosecution argues this evidence is relevant as it allows the jury to make an inference as to Mrs Kannan’s control over the complainant’s movements, and also that there was a lack of concern for her health and wellbeing at the time. It is submitted this is also relevant to establishing the complainant was in a condition of slavery, as she was subordinate, ‘did not have value’, and was ‘not cared for’ by the accused.

The prosecution submits items 16-19, being Internet activity that occurred on 27 August 2015, provide context for the earlier activity reflected in items 2-3. It is submitted the jury could infer that these Internet searches were in relation to the complainant, particularly considering their timing with surrounding events. Further, the prosecution submits these items show increasing specificity in Mrs Kannan’s Internet activity, visiting several pages on the Department of Immigration website. It is noted that several of these pages relate to passports and visas, and submitted that this is especially relevant as the complainant did not have a passport in her possession.

The prosecution further relies on the above submissions in relation to items 24 and 39‑41.

Defence submissions

The defence objects to the admissibility of this evidence, submitting the entry of these searches does not establish Mrs Kannan’s control over the complainant’s movements, nor her knowledge of the complainant’s visa status. It is submitted these items do not relevantly bear upon a fact in issue, as required by s 55(1) of the Act, and it would be ‘speculative’ to utilise them in the manner proposed.

Further, it is noted that apart from items 2-3, all of this electronic evidence relates to conduct that occurred following the charge period. As this evidence is not sought to be led as post-offence conduct, the defence submits it does not assist the jury in determining any element of the offences charged.

The defence submits that if this evidence is deemed relevant, it has such little, if any, probative value pursuant to s 137 of the Act. In this regard, it is submitted the prosecution’s argument that items 2-3 reflect conduct that occurred while Mrs Kannan knew the complainant was unwell on the bathroom floor and demonstrate her lack of care, is a ‘highly prejudicial proposition’.

The defence also submits there is a lack of clarity and information surrounding these items, with an absence of evidence as to the process of such Internet activity. As an example, defence counsel notes there is no evidence as to whether Mrs Kannan would have clicked on various links to access the Internet pages referred to, or whether windows may have opened automatically. It is submitted this lack of surrounding evidence leaves difficulties as to what a jury is to make of the search process.

Conclusions

The disputed electronic evidence falls into broad categories of activity by Mrs Kannan, including communications concerning the visit by Victoria Police to the accused’s house on 31 July 2015, Internet searches, and communications between the hospital and Mrs Kannan concerning the ongoing care and treatment of the complainant. There are also a number of miscellaneous entries that do not fall into any broad category that seem of variable significance.

Evidence alleged to demonstrate control exerted by Mrs Kannan over the complainant’s physical and mental health

The fact that a large part of the evidence occurred after the charged period does not render it inadmissible. Notwithstanding that the prosecution does not allege any of the communications amount to post-offence incriminating conduct, in my opinion the disputed phone communications are still relevant and admissible. I accept the submission of the prosecution that a number of the items are relevant to the jury’s assessment of the control and responsibility Mrs Kannan had over the complainant in respect of her medical circumstances, including her physical and mental health, her movements and visa status. The prosecution case is that these circumstances existed throughout the period when the complainant lived and worked in the accused’s house, until she was admitted into hospital. The alleged control and domination of many aspects of the complainant’s living circumstances is a central component of the case brought by the prosecution.

The jury will be required to evaluate the fact and degree of control, if any, held over the complainant during the period of the charges. Representations by Mrs Kannan as appear in the electronic evidence, together with the hospital communicating with her as the contact for the complainant, can be evaluated together along with various family meetings held at the hospital which included Mrs Kannan. During these meetings, Mrs Kannan gave information about the complainant and her living circumstances, both prior and after her admission to hospital. These are all matters to be assessed in a combined way by the jury. It is appropriate that the electronic evidence not be evaluated in isolation, but as part of an overall circumstantial case where the evidence is relevant to explain the context and nature of the relationship that existed between Mrs Kannan and the complainant before and after the complainant was admitted into hospital. In my opinion, to restrict the evidence capable of assisting in the demonstration of the nature of the relationship between the two women, would not allow the jury to fully and properly understand the context and nature of that relationship.

Further, some of the communications add to the prosecution’s case that the complainant was living with the accused and their family during the period alleged, a matter the prosecution sets out to establish. Although there may be no dispute that the complainant lived with Mrs Kannan at some relevant times, including the dates of various text messages, that circumstance does not render the evidence inadmissible. The prosecution is entitled to call evidence to support the contention that the complainant lived with the Kannan family for the whole period, or near to the whole period, from when she arrived in Australia in 2007.

Therefore, I have concluded items 1, 4-15, 20-30, 32-38 are all admissible as relevant evidence against Mrs Kannan.

Further, I do not accept the defence submission that several of these items should be excluded pursuant to s 137 of the Act. I have read these extracts carefully and in my opinion, the probative value of the evidence is not outweighed by the danger of unfair prejudice to Mrs Kannan. In particular, I note that item 6, referring to the possibility the police would be called, is a piece of communication that is part of an ongoing series of communications about the complainant’s medical care. Consistently with other relevant communications and medical records, the hospital regarded Mrs Kannan as having a degree of authority when dealing with the care of the complainant. The request was a forceful one, however, in the circumstances, I do not think the probative value of the evidence is outweighed by the danger of unfair prejudice. In due course police did attend the Kannan’s home a number of times, and the jury will have evidence of those visits before it.

In this regard, however, I note I would not permit the prosecution to advance argument that this evidence demonstrates Mrs Kannan had an uncaring or callous attitude towards the complainant and was evasive about attending hospital appointments. In my opinion the passages are not sufficiently probative of that suggested inference.

In reaching these decisions, I note that I have not taken into account the failure of Mrs Kannan to correct the hospital staff’s references to the complainant as ‘Rangan’, allegedly being the false name Mrs Kannan provided for the complainant when she was attended to by ambulance officers. The matter was identified as an omission during the course of submissions, but not advanced further in argument, and appears to be of little significance to the prosecution case.

I also note that neither party addressed the impact of items 6 and 8-13, being references to a police visit, in relation to the representations made by Mrs Kannan to Sergeant Keenan on 24 August 2015. I have previously ruled that many of these representations to Sergeant Keenan amount to post-offence incriminating conduct.[5] As neither party have made submissions on this issue, I not taken this into account in deciding the outcome of the present ruling.

Evidence alleged to demonstrate control exerted by Mrs Kannan over the complainant’s movement and knowledge of her visa status

[5]R v Kannan & Anor (Ruling No 3) [2019] VSC 797R.

As to the evidence of Internet investigations carried out by Mrs Kannan, which involved occasions of logging on to websites such as the Department of Immigration and Border Protection, and a searching for an ‘immigration law specialist’, I am not persuaded this evidence bears sufficient relevance in proving the offences charged. As I understand the evidence, searches of the Department of Immigration website and that of the solicitor, do not reveal any particular purpose, or what part of the websites were searched. The evidence does not illuminate the reason why the searching occurred, and what the outcome may have been. Whilst it to be acknowledged the case is a circumstantial one in which pieces of evidence can fit to become part of a wide and varied matrix of facts, I do not think these items of evidence bear sufficient relevance to rationally affect the assessment of the probability of a fact in issue in the proceeding. Therefore, I rule that items 2-3, 16-19, 24, 39-41 are not relevant and therefore inadmissible.

ANNEXURE 1[6]
[6]This Annexure replicates the electronic evidence in dispute, as contained in a more expansive table provided by the prosecution to the Court. I note that any grammatical or spelling errors contained within this evidence have not been corrected.

ITEM:	DATE:	TIME (AEST):	MEDIUM:	CONTENT:
1	28 November 2013	1:04am	SMS to Vaishali Pavithra Raveendran (AU phone number)	…I am free Thursday evening after 6.30. I will be sleeping in the morning & then have appointment for ammachi…
2	30 July 2015	4:21pm	Google search	department of immigration
3	30 July 2015	4:21pm	Website visit	Department of Immigration and Border Protection
4	17 August 2015	10:59am	Missed telephone call	Hello please call box Hill Hospital and ask to speak to Ward 6.2 ward clerk to let us know.
5	17 August 2015	12:03pm	Missed telephone call	Hello, it’s Nicky here at social worker at box Hill Hospital. Please call 98953333 and ask them to put you through to Nicky.
6	17 August 2015	12:19pm	SMS from +61421267500	Hello Kumi Kanna, This is Nikki, Social Worker at Box Hill Hospital. Could you please call the Nurse in Charge on 99756697 asap to provide details about the GP that you took Rangan to, and to arrange to meet with the treating team tomorrow. We have tried to contact you with no success. If we do not receive a response, we will contact the police. Kind regards, Nikki
7	17 August 2015	12:24pm	SMS from +61421267500	Hi again Kumi, sorry, the number I gave you is not working. Please call 99756670, to speak with the Nurse in Charge. Kind regards, Nikki
8	18 August 2015	2:39pm	SMS from +61421267500	Hi Kumi, Can you please confirm the date and name of the police officer that attended your house to search through Rangan’s possessions please? Thanks, Nikki, Social Worker
9	18 August 2015	2:57pm	SMS to +61421267500	I didn’t ask. But I they said that they Are from mouth Waverley police station. They were 2 of them.
10	18 August 2015	2:57pm	SMS to +61421267500	Mount Waverley police station
11	18 August 2015	3:00pm	SMS to +61421267500	They came the next day after she was admitted at hospital. Friday 30^th.
12	18 August 2015	3:01pm	SMS to +61421267500	Please let me check the date. I know it was the very next day after she was admitted.
13	18 August 2015	5:37pm	SMS to +61421267500	Friday 31^st July.
14	19 August 2015	3:30pm	SMS to +61421267500	HI Kumi, More tests required, so discharge not anticipated to be before end of next week at this stage, rather than start of week as Dr’s inidicated yesterday. I am on leave until 31/8/15 – if needed, Saskia or Popi will contact you in that time, regards, Nikki
15	20 August 2015	4:57pm	SMS to ‘Nagula Ravindrakumar’ (AU phone number)	Still in hospital. May come tomorrow.
16	27 August 2015	3:17am	Google search	department of immigration
17	27 August 2015	3:19-3:22am	Visited website (	Pages – ‘what if I have a new passport’, ‘what if I don’t have a passport’, ‘visa entitlement verification online’, ‘individuals and travellers’, ‘report something suspicious’, ‘our offices’
18	27 August 2015	3:23-3:25am	Google search	departmentof immigration
19	27 August 2015	3:23-3:25am	Visited website (Department of Immigration and Border Protection)	Page – ‘provide feedback – compliment, complaints and suggestions’
20	28 August 2015	8:13am	SMS to +61421267500	Hi Saskia, Sorry i have not been able to contact you. My husband had a medical emergency & was also rushed into hospital by ambulance Last week. He is better now, but I am busy caring for him & the kids pick up/driving duties. I haven’t been able to come to hospital to visit Nana. I have tried numerous times & haven’t been able to talk to anyone. I am going to sleep now. Please call me after 3.30 if you can. I will appreciate it very VERY MUCH. Thanks, Kumi Kannan
21	28 August 2015	9:24am	Missed call (voice to text message)	Coppice from Social Work at Box Hill Hospital. My Mobile is 0432005.
22	28 August 2015	9:24am	Missed call (voice to text message)	This is Poppy from Social Work at Box Hill Hospital. My no. is 04320054__
23	28 August 2015	11:56am	SMS from 0432005453 (voice to text message)	Poppy social worker at Box Hill
24	30 August 2015	6:48pm-6:54pm	Google searches	Immigration law specialist Immigration law specialist in Mount Waverley
25	31 August 2015	10:06pm	SMS to 0432005453	Ho Poppy, I have a family emergency and I cannot attend the appointment at 11.30 tomorrow. I am VERY VERY SORRY. Can we please reschedule? Please understand. I will call you tomorrow afternoon to reschedule. Thanks for understanding, Kumi Kannan
26	3 September 2015	12:35am	SMS to 0432005453	Hi Poppy, I am had an accident & hurt my neck. I just had a doctor visiting home. I am unable to move my neck & taken pain medication. Need to visit the doctor tomorrow. I will call later. I need to organize matters at home. Please tell Nana that I will at least try to call her tomorrow night. I tried earlier but unable to get through. Appears that both of us are having really bad luck. Will talk to you later. Regards, Kumi Kannan
27	3 September 2015	12:07pm	SMS from 0432005453	Hi Kumi I hope you are all right We think Nana will be ready for discharge next week Do you think we can reschedule for Monday 1.30? Thanks Popi
28	4 September 2015	8:55am	SMS from 0432005453 (voice to text message)	61432005453 Hi Kumi this is Poppy from Social Work. I’m sorry to call you. Hope you’re feeling better. Can you please call me back I want to reschedule another appointment. Thank you.
29	6 September 2015	5:46pm	SMS to 0432005453	Hi Poppy, Sorry for not responding sooner. I am still unable to drive & sorting out transport arrangements for children’s school pick up. I am hoping that I will be able to drive after the appointment with the Osteopath tomorrow. I am not able to get anyone to drive me there Monday either. So, can we please have the appointment reschedule to Tuesday. Please! Thanks for understanding. Regards, Kumi Kannan
30	7 September 2015	10:41am	SMS from 0432005453 (voice to text message)	61432005453 Hi Kumi this is Poppy from box Hill Hospital. Can you please give me a call on my mobile to reschedule another time. Thank you Kumi(?).
31	7 September 2015	TIME	SMS from 0432005453 (voice to text message)	Hi Julie this is Poppy(?) from box Hill against it’s(?) really important actually to talk to you on the phone today. So can you please give me a call on my.
32	8 September 2015	9:34am	SMS from 0432005453 (voice to text message)	Hi Kumi this is Poppy from box Hill. Just ringing to remind you that we’re going to contact you at 10:00 for a discussion with the doctors about.
33	8 September 2015	10:09am	SMS from 0432005453 (voice to text message)	61432005453 Hi Kumi this is Poppy. Can you please pick up your phone for the 10:00 meeting as arranged. Thanks.
34	8 September 2015	10:18am	SMS from 0432005453 (voice to text message)	61432005453 Hi Kumi this is Poppy. The interpreter is here and we really would like to commence the meeting. Can you please pick up the phone. I’ll call again in 10 minutes.
35	9 September 2015	4:30am	SMS to 0432005453	I am going to bed now after a long night of cooking& cleaning. I am going to work tonight as I am able to move. So, please call after 1 & I will be able to talk. I don’t know how to explain the difficulties I go through every day. I am sure Nan would have explained the stress I go through every night. I am going to bed now, please call anytime after 1. Thanks, Kumi kannan
36	9 September 2015	7:58am	SMS from 0432005453 (voice to text message)	61432005453 Hi Kumi this is Poppy. Can you please call me this morning. It’s(?) really important that I speak to you. Thank you very much.
37	10 September 2015	5:18am	SMS to 0432005453	Hi Poppi, We finally found the phone. I have issues like this I have to deal often. I did call the hospital and gave them my home number, but you didn’t call. I have to attend my son’s school event today at Ballarat. I will not be able to talk to you today. I couldn’t get to talk with Nana as every time I get transferred & disconnected. I am exhausted after the drama at home. Hoping for a better day today. THanks, Kumi kannan
38	10 September 2015	2:17pm	Missed call	Hi Kumi this is Poppy. I’m just ringing to see if you can talk to Nana directly. Can you please keep your phone open and I’ll cakk you back.
39	29 September 2015	11:25am-11:38am	Google search	department of immigration
40	29 September 2015	11:25am-11:38am	Visited	Pages – ‘contact us’, ‘visiting Australia’, ‘visitor visa options’, ‘visitor visa (subclass 600)’, ‘service standards’, ‘visa processing times’
41	1 October 2015	5:03am	Visited	Page – ‘electronic travel authority (subclass 601)’

[2019] VSC 798

5 December 2019