R v Kannan (Ruling No 4) - [2019] VSC 798

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…

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 4)

Details

AGLC: R v Kannan (Ruling No 4) [2019] VSC 798
Case: [2019] VSC 798
Decision Date: 5 December 2019

CaseChat Overview and Summary

In the matter of the Commonwealth versus Kannan, the case before the court involved the admissibility of various electronic communications, including SMS messages, Internet browsing data, and voicemails. The defence argued that the probative value of these items was outweighed by their prejudicial effect, seeking to exclude them from the trial. The court was tasked with determining whether these items of electronic evidence met the criteria for admissibility under the Evidence Act 2008.

The central legal issue before the court was whether the electronic evidence in question was relevant and admissible under the Evidence Act 2008, despite the defence's claims that the prejudicial effect would substantially outweigh any probative value. The court considered whether the evidence could assist in deciding a fact in issue, was not substantially outweighed by the danger of unfair prejudice to a party, and whether any other considerations under the Act impacted its admissibility. The court also evaluated the weight that should be given to the evidence, if any, in accordance with the statutory provisions.

The court, after careful consideration, determined that certain items of the electronic evidence were relevant and therefore admissible, as they had probative value that was not substantially outweighed by the danger of unfair prejudice. However, some items were deemed inadmissible as they did not meet the criteria for relevance or were considered too prejudicial. The court balanced the probative value of the evidence against the potential for unfair prejudice and other considerations under the Act, ensuring that the interests of justice were upheld. The court's ruling clarified the admissibility of specific electronic evidence in the case, setting a precedent for the handling of similar evidence in future proceedings.

No specific orders were made in the ruling beyond the determination of the admissibility of the evidence. The court's decision allowed the prosecution to use the admissible electronic evidence in the trial, while ensuring that prejudicial evidence that did not meet the statutory criteria was excluded. The ruling provided guidance on the application of the Evidence Act 2008 in cases involving electronic communications, aiding in the efficient and fair conduct of the trial.

Orders