R v Kannan (Ruling No 5)
[2019] VSC 799
•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:
16 July & 14 August 2019
DATE OF RULING:
5 December 2019
CASE MAY BE CITED AS:
R v Kannan & Anor (Ruling No 5)
MEDIUM NEUTRAL CITATION:
[2019] VSC 799
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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 – Record of conversation – Alleged admissions – Defence disputes relevance and whether statements constitute admissions – Application for excise of material – Application partly granted – 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
1 The prosecution seeks to lead a record of conversation (‘ROC’) between several Australian Federal Police (‘AFP’) federal agents and both accused on 1 October 2015. This ruling relates to a portion of the ROC containing conversation between Federal Agent David Macgregor and Kandasamy Kannan (‘Mr Kannan’). I have provided further detail as to the contents of this conversation below, and the relevant extract is annexed to this ruling as Annexure 1.
2 The prosecution submits this is relevant evidence that should be before the jury. It is argued this extract of the ROC is evidence of Mr Kannan’s awareness that Rajalakshmi Natarajan (‘the complainant’) wanted to return to India and also was not paid by the accused. The prosecution further submits the disputed conversation contains admissions as to these two allegations.
3 Conversely, counsel for Mr Kannan argues this evidence is irrelevant and cannot be considered to include admissions. I note that any references in this ruling to ‘the defence’, only refers to Mr Kannan, as Mrs Kannan did not make submissions on this application.
Background
4 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.
5 I have summarised the prosecution case regarding these charges in a previous ruling in this matter.
The disputed evidence
6 This ROC occurred on 1 October 2015 at the home of the accused at 3 Gillian Road, Mount Waverley, in relation to the execution of a search warrant. Both accused were cautioned at relevant points of the conversation. The transcript indicates questioning was suspended several times and alternated between the questioning of both or a single accused.
7 The disputed portion of the ROC commenced at 10.02am and was of approximately 7‑8 minutes in duration. The passage appears between questions and answers 344 to 397 of the transcript. During the conversation, Federal Agent Macgregor stated he had located a letter in the home-office, addressed to an individual named ‘Ammayee’ and dated 10 April 2015. The subsequent questions and answers reveal Ammayee is a woman who stayed with the accused before the complainant, for approximately six months in 2001 or 2002. I note that the contents of this letter were not read out and are not contained in this ROC.
8 In response to questions asked, Mr Kannan stated at questions and answers 356-357 that the aforementioned letter was for the purpose of asking Ammayee to stay with the accused again, as the complainant wanted to return to India. When speaking of the complainant, at question and answer 365, Mr Kannan told the questioner, ‘we were planning to send, you know, back this year’, in June or July. He further stated the accused were thinking of sending the complainant back to India due to her financial situation and that she wanted to go back anyway.
9 In general terms, questions and answers 372-397 also include Mr Kannan’s comments as to his knowledge of Ammayee’s background, the reason why she came to Australia previously, and possible future arrangements with Ammayee, including discussions as to her reward for working for the accused. As below, the precise meaning of some of Mr Kannan’s responses is contested.
The applicable legislation
10 Part 3.1 of the Evidence Act 2008 (Vic) (‘the Act’) outlines the requirement that evidence 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.
11 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.
12 Additionally, as the prosecution submits the ROC contains admissions made by Mr Kannan, I note the following definition contained in Part 1 of the Act:
admission means a previous representation that is —
(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b) adverse to the person’s interest in the outcome of the proceeding;
Prosecution submissions
13 The prosecution argues this extract of the ROC is relevant evidence as it contains admissions by Mr Kannan that:
(a) he had an awareness that the complainant wanted to return to India; and
(b) that the complainant was not paid.
14 The prosecution draws particular attention to Mr Kannan’s responses to questions 363-371 as evidence of his knowledge the complainant wanted to return to India. It is submitted this corroborates the evidence of the complainant and also her son‑in‑law, Jawahar Krishnan, that Mr Kannan knew the complainant wanted to leave. The prosecution acknowledges that some of Mr Kannan’s answers refer to an intention to arrange the complainant to return to India in 2015, however, it is argued other evidence indicates the complainant asked to return well before this time.
15 Further, the prosecution submits Mr Kannan’s response to question 397 corroborates the evidence of the complainant and Mr Krishnan that the complainant was not paid by the accused. It is submitted that in this response, Mr Kannan was referring to the complainant and Ammayee together, as individuals the accused have at their house to assist them with domestic duties, without payment, beyond the occasional gift or present. The prosecution argues this is consistent with the complainant’s evidence that the accused gave her the odd gift, such as a sari.
16 The prosecution concedes that several of Mr Kannan’s remarks in the ROC appear to reference to Ammayee, not the complainant. It is submitted that while some responses could be redacted, others are required to give context to the statements made by Mr Kannan that allegedly relate to both Ammayee and the complainant. In particular, the prosecution argues that for the response to question 397 to be properly understood, as above, the jury should see the preceding remarks.
17 In relation to the various references to Ammayee in the ROC, the prosecution argues the jury can be directed that this evidence is only to be used as corroborating evidence for the allegation the accused knew the complainant wanted to return to India and that they were not paying her.
Defence submissions
18 The defence submits that evidence as to the previous arrangement with Ammayee is not capable of directly or indirectly affecting the assessment of the probability of a fact in issue in relation to the complainant. The defence argues that if this evidence is relevant, it is only relevant for a tendency purpose and no such notice has been filed by the prosecution. In this regard, it is further submitted that the ROC does not establish Ammayee was not paid when she resided with the accused in 2001.
19 The defence argues this evidence is irrelevant due to the paucity of detail as to what occurred in 2001, beyond this ROC. It is further submitted that the lack of proximity between Ammayee’s stay in 2001 and the stay of the complainant between 2007-2015 is such that it is difficult to draw any sensible comparison. In this regard, the defence notes that according to the ROC, it appears Ammayee only resided with the accused for six months, whereas the complainant lived there for a significantly longer period. The defence argues the ROC does not assist the jury to form a view as to Mr Kannan’s treatment of the complainant, and is therefore irrelevant.
20 Additionally, defence counsel contests the prosecution’s interpretation of Mr Kannan’s response to question 397, as above in [15]. It is submitted that in the context of the four or five preceding questions, Mr Kannan’s reference to giving ‘them…gifts and presents’, was actually a reference to Ammayee and her family, not the complainant.
21 The defence submits the ROC cannot be redacted to remove the references to Ammayee. It is submitted the edits required would render the remaining contents devoid of appropriate context and meaning, as the full conversation is required to understand Mr Kannan’s comments, such as his response to question 397.
22 Further, the defence submits the answers given by Mr Kannan in the ROC are not admissions. It is submitted the combined effect of his answers is that in at least April 2015, three months before the complainant was admitted to hospital, the accused started making arrangements to have the complainant sent back to India and for another woman to stay with them. The defence argues this cannot be considered a previous representation adverse to Mr Kannan’s interest in this proceeding, as outlined in the definition of an admission contained in Part 1 of the Act. Therefore it is submitted this ROC is inadmissible as it is both irrelevant and does not contain admissions that could be ruled admissible.
Conclusion
23 In my opinion, aspects of the ROC are relevant and admissible, but other excerpts are not of sufficient probative value to be led in evidence.
Questions and answers 344-371
24 I have concluded the fact of finding the letter of 10 April 2015 is admissible, as are the passages that occur between questions and answers 344-361, which provide necessary context to admissible passages that follow.
25 I accept the prosecution submission that questions and answers 362-371 of the ROC are admissible on the basis contended for, namely to establish that Mr Kannan had an awareness that the complainant wanted to return to India in 2015. While the prosecution submission focusses on this issue, in my opinion the probative value of the answers is wider than that contended for.
26 First, question and answer 362 bears directly on the fact that the complainant was ‘still here’. It would be open to the jury to conclude this was a statement of Mr Kannan’s knowledge that as at April 2015, the complainant was still living at the accused’s home. This answer represents an admission in circumstances where the prosecution sets out to prove the complainant was living at the accused’s home until she was removed by ambulance. Apart from this piece of evidence, there may well be other evidence capable of establishing this aspect, however, that does not provide a proper reason to reject the evidence from being led.
27 Furthermore, the statements in questions and answers 363-371, regarding an apparent proposal to ‘send’ the complainant back to India, are capable of representing relevant admissions. If accepted by the jury as truthful responses, in combination with other evidence in the prosecution case, these statements are capable of contributing to the proof of at least one indicia of slavery, namely, the element of control or dominion over a person, who was at the relevant time an adult, who ordinarily would be expected to have the capacity to make her own decision to return home, to make her own arrangements, and to be able to pay for her travel. In the context of a circumstantial case, the statements in these passages are capable of contributing to the proof of Mr Kannan’s possession of power and control over the complainant, and are accordingly admissible.
Questions and answers 372-397
28 In my opinion the conversation that occurs between questions and answers 372- 397 is not admissible and should not be led in evidence. This aspect of the conversation is almost entirely about Ammayee, who stayed with the accused in 2001 or 2002, and about whom the letter of April 2015 is addressed. In large part, it concerned personal information about Ammayee that is irrelevant to the case against Mr Kannan.
29 When viewed as a whole, I am not persuaded this component of the disputed evidence is sufficiently probative of the issues under consideration to be adequately relevant. At question and answer 374, Mr Kannan stated accommodation and food would be provided to Ammayee, and at questions and answers 392-393 he suggested the arrangement would not be about money, but rather a mutual understanding, and that she would help out and would have presents bought for her. The prosecution argues these passages demonstrate Mr Kannan knew the complainant was not being paid money for the work she performed. However, these particular questions and answers were directly about Ammayee and the possibility that she would come to Australia and work for both accused.
30 Having considered the matters carefully, it appears to me that the questioner did not take the matter sufficiently far to assist in establishing there was a similar type of relationship that had existed with Ammayee, and might later exist, to add to the proof of the type of relationship that existed with Ms Natarajan. Further, the body of evidence risks being regarded as a form of propensity reasoning.
31 Further, in the context of questions and answers 394-397, where the description ‘they’ and ‘them’ are used, I note that in the second sentence of answer 397, Mr Kannan reverted to the description ’she’, in what could arguably represents a statement reverting to the answer being about ‘Ammayee’. In my opinion when considered carefully, the passages are insufficiently clear to amount to the evidence being probative of the matters contended for by the prosecution, in particular, as amounting to evidence that Mr Kannan knew the complainant was not being paid for the work she carried out. I further note there is considerable doubt in my mind as to whether in the context of the preceding questions and answers, the references to ‘they‘ and ‘them’ were references to the complainant and Ammayee, not Ammayee and her family.
32 In my opinion questions and answers 372-397 are inadmissible and should not be led in evidence.
ANNEXURE 1
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