R v Kannan (Ruling No 6) - [2019] VSC 843

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:	16 & 17 July 2019
DATE OF JUDGMENT:	12 December 2019
CASE MAY BE CITED AS:	R v Kannan & Anor (Ruling No 6)
MEDIUM NEUTRAL CITATION:	[2019] VSC 843

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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 – Video Audio Recordings of Evidence (VAREs) – Application for excise of passages – Defence allege answers irrelevant, of insufficient probative value, and some follow leading questions – 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

This ruling relates to the content of six Video Audio Recordings of Evidence (VAREs), to be led by the prosecution as the evidence in chief of Rajalakshmi Natarajan (‘the complainant’). These VAREs were recorded on 8, 13, 22 and 28 October 2015; 23 December 2015; and 30 June 2016.

On 16 July 2019, I granted the prosecution leave to admit these six VAREs as evidence in chief of the complainant, pursuant to s 15YM(1) of the Crimes Act 1914 (Cth).[1]
[1]R v Kannan & Anor (Ruling No 1) [2019] VSC 461R.

Kumuthini Kannan (‘Mrs Kannan’) now applies for the excise of 14 passages of questions and answers, contained in five of the six VAREs. Kandasamy Kannan (‘Mr Kannan’) joins in the application for the removal of one of the disputed passages, however, this application was predominantly argued by counsel for Mrs Kannan. In general, the grounds supporting the application include that the passages have little or no probative value, are irrelevant, and in some instances, involve answers being provided following leading questions by the interviewer.

I note there are further defence applications regarding different objections to aspects of the VAREs, but this ruling will only address the application for the excision of 14 passages, as above.

As each VARE was transcribed, I will refer to the question and answer numbers as set out in each relevant transcript. The disputed passages are annexed to this ruling as Annexure 1.

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,…

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 6)

Details

AGLC: R v Kannan (Ruling No 6) [2019] VSC 843
Case: [2019] VSC 843
Decision Date: 12 December 2019

CaseChat Overview and Summary

The matter of R v Kannan (Ruling No 6) was heard in the County Court of Victoria. The respondent, Kannan, faced charges of intentionally possessing a slave and intentionally exercising over a slave any of the powers attaching to the right of ownership, namely use. The prosecution sought to rely on Video Audio Recordings of Evidence (VAREs) as part of their case. The defence contested the use of these recordings, arguing that the answers obtained were irrelevant, of insufficient probative value, and that some responses followed leading questions.

The court had to determine whether the VAREs were admissible under the Evidence Act 2008, considering the objections raised by the defence. The legal issues included the relevance and probative value of the evidence, as well as whether the questioning during the VAREs was fair and did not lead the witness. The court examined the nature of the questioning and the content of the responses to assess if they met the standards required for admissibility.

In its ruling, the court found that some parts of the VAREs were admissible while others were not. The court determined that certain answers provided by the witness were relevant and had sufficient probative value. However, some responses were deemed to have resulted from leading questions and were therefore excluded. The court balanced the probative value of the evidence against the potential for prejudice and unfairness, ultimately deciding that only parts of the VAREs could be used in the trial.

The court ordered that specific passages from the VAREs be excised from the evidence presented in the trial, while allowing other parts to be admitted. This decision was made to ensure that only fair and reliable evidence was used, adhering to the principles set out in the Evidence Act 2008.

Orders