R v Kannan (Ruling No 8)
[2020] VSC 368
•10 February 2020
| 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 |
DATES OF HEARING: | 12 & 13 December 2019 |
DATE OF RULING: | 10 February 2020 |
CASE MAY BE CITED AS: | R v Kannan & Anor (Ruling No 8) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 368 |
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CRIMINAL LAW – Ruling – Two accused – Charges of intentionally possessing a slave and intentionally exercising over a slave any of the powers attaching to the right of ownership, namely use – Prosecution seeks to adduce evidence given by complainant at committal hearing as previous representations – Vulnerable adult witness - Evidence admissible – Reasonable probative value – Complainant can be cross-examined on evidence – Vulnerable witness provisions do not preclude prosecution from leading additional evidence – Crimes Act 1914 s 15YM – Evidence Act 1995 ss 66, 137 – Criminal Procedure Act 2009 ss 367, 384.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms T. McDonald SC with Ms C. Nicholson | Commonwealth Director of Public Prosecutions |
| For Kumuthini Kannan | Dr G. Boas with Mr A. Imrie | Stary Norton Halphen |
| For Kandasamy Kannan | Mr P. Chadwick QC with Ms M. Brown | Peter Lunt Lawyers |
HIS HONOUR:
Introduction
The prosecution have applied for the admission into evidence of a series of questions and answers given at the committal proceedings during the evidence of Rajalakshmi Natarajan (‘the complainant’).
I have previously summarised the facts of this matter in the first ruling in this trial.[1] In that ruling, I concluded that the complainant was a vulnerable witness and that six VARES representing a series of interviews of the complainant by the Australian Federal Police (‘AFP’) were admissible.[2] The prosecution successfully obtained leave pursuant to s 15YM(1) of the Crimes Act 1914 (‘the Act’), meaning that the contents of the six video and audio recorded VARE interviews can be led as evidence in chief of the complainant.
[1]R v Kannan & Anor (Ruling No 1) [2019] VSC 461R.
[2]Ibid at paragraph [40].
The evidence sought to be led
In respect of this application, the evidence sought to be led is as follows:[3]
[3]Depositions, p.30 at T 28.5-13, T 29.17-22.
Dr Boas:When you came to Australia, you say that you stayed from that point on?
Complainant: Yes.
Dr Boas:But is it the case that you didn’t stay the whole time initially – I’ll rephrase that – I withdraw that. You stayed initially with the Kannans for about a month?
Complainant: No.
Dr Boas:Did you leave the Kannans with another person that you knew or people that you knew in Australia?
Complainant: No, I was not allowed to go.
…
Dr Boas:Is it your evidence that you did not depart with another family after being with the Kannans for a month in 2007?
Complainant: No, I never went to any other house.
Dr Boas:Is it your evidence that you did not return, did not leave and return a couple of months later?
Complainant: No, I didn’t come back.
The evidence was adduced during the cross-examination of the complainant by counsel appearing for Mrs Kannan.
The prosecution submissions
The prosecution seeks for the above evidence to be adduced on the basis that it will assist in proving that the complainant:
(a) Stayed with the Kumuthini Kannan (‘Mrs Kannan’) and Kandasamy Kannan (‘Mr Kannan’), being the two accused, from the point of her arrival into Australia;
(b) Did not leave the accused’s house for any period of time to stay with another person;
(c) Did not leave the accused’s house in 2007 for around a month;
(d) Did not leave the accused’s house at any time and return a couple of months later; and
(e) Was not allowed to leave the accused’s house for any period of time.
The prosecution submits that the complainant’s answers are previous representations. It does not seek to adduce the evidence through the complainant, but rather tender the transcript and/or video recording of the above passages. In doing so, the prosecution relies on the facilitative provisions in s 48 and s 157 of the Act.
The prosecution relies on the truth of the answers given by the complainant and submits the evidence is admissible as an exception to the hearsay rule. Further, it would appear that the statements, if accepted by the jury, are capable of rebutting various representations of both accused that are, in some respects, contrary in substance to the versions of these facts provided by the complainant.
Primarily, the prosecution relies on s 66 of the Evidence Act 1995 (Cth) (‘EA’). It is submitted the complainant is available to give evidence about an asserted fact, and is therefore not an unavailable witness, as defined in the Dictionary of the Act.[4]
[4]See Crimes Act 1914 (Vic), Dictionary, Clause 4, Part 2.
Further, it is also submitted that s 15YM of the Act is permissive in that a video recorded interview can be admitted as evidence in chief with the leave of the Court. The prosecution argues that this section does not require all of the evidence in chief of the person to be given by video recorded interview, such that the legislative provision allows for the evidence in chief of a vulnerable witness to be supplemented by the extract of committal transcript or by viva voce evidence.
In the alternative, the prosecution submits that if the complainant is not ‘available’ to give evidence of the matters in the above extract, it can rely on s 65 of the Act to allow the evidence to be adduced.
The defence submissions
Submissions for Mr Kannan
Counsel for Mr Kannan objects to the questions and answers given by the complainant in the committal from being admitted into evidence. It is argued that it would be an unprecedented and novel proposition to tender the transcript or audio recording of extracts from the committal hearing. The defence argues that the proper purpose of the committal prevents the prosecution from taking this course.
Further, it is submitted that the stated purposes in leading the evidence, as noted above, is not supported by the evidence. The defence points out that as it is intended the committal evidence is not led through the complainant, the first the jury will hear of this evidence will be during cross-examination.
The defence points out that there is no section in the Act similar to s 384 of the Criminal Procedure Act 2009 (Vic). It submits that, by seeking a lead to the committal evidence, the prosecution is attempting to circumvent the operation of section 15YM of the Act.
Further, it is submitted that depositions do not fall within section 48 of the Act, which permits a party to adduce evidence of the contents of a document.
Lastly, the defence submits that the probative value of the evidence is outweighed by the danger of unfair prejudice and should be excluded pursuant to s 137 EA.
Submissions for Mrs Kannan
Counsel for Mrs Kannan adopted the outline of argument filed on behalf of Mr Kannan. It is pointed out that the prosecution has been unable to identify any previous occasion where a court had admitted the transcript of evidence given in a committal for the purposes of bolstering and supplementing a witness’ evidence in chief, where the witness has been available to give the evidence.
Referring to s 66 EA, the defence argues that the representations sought to be adduced concerned matters in 2007, at least a decade before the representations were made at the committal hearing. As such, it is contended that the evidence is inadmissible as it cannot be said to be ‘fresh in the memory’ of the complainant.
Further, the defence also relies on s 137 EA, submitting that it is unfair to allow the prosecution to supplement the evidence in chief of an available prosecution witness by tendering answers given in cross examination at the committal. It is contended that this would constitute a fundamental alteration to the course of criminal proceedings and undermine the purpose of a committal proceeding. As such, it is submitted that any probative value of the evidence is outweighed by the unfair prejudice that arises from it being used in the manner proposed by the prosecution.
Analysis & Conclusions
Can the prosecution use evidence given in a committal in a subsequent trial?
As a general rule, a party to a criminal proceeding can use evidence given at a committal hearing in a trial. For instance, it is generally open to the prosecution to use evidence obtained on oath during a committal proceeding as evidence in a subsequent criminal trial. A witness called at a committal, and having given evidence on a particular issue, may be asked to repeat that evidence before a jury as part of the prosecution case. If the evidence has not previously been expressed in a police statement on the hand-up brief, the accepted practice is that notice is provided by way of a Notice of Additional Evidence and/or by the inclusion of a description of the proposed evidence in the Summary of Prosecution Opening, which must be filed before the start of the subsequent trial.
In those circumstances, it is usually the case that the witness who gave the previously undisclosed or unknown evidence at the committal, will be called as witness to give the ‘new’ evidence during his or her evidence in chief. Provided that notice requirements are given, and no other admissibility or discretionary issues arise in any particular case, there is nothing which prevents the prosecution from leading the evidence.
Can the defence use previously unknown evidence adduced in a committal at a subsequent criminal trial?
There is no doubt that, as a general rule, counsel for an accused can use previously undisclosed or unknown evidence at a subsequent criminal trial. For example, such evidence might be put forward as potentially directly exculpatory evidence. Further, the defence may use the evidence of a prosecution witness at a committal to challenge the credibility of witnesses in a later trial by pointing to previously inconsistent statements.
As above, it is clear that evidence given by a witness at a committal hearing is capable of being deployed in a later criminal trial, subject to the requirements of its admissibility being met. Further, there is no reason to conclude that the use of such evidence is restricted to the prosecution and/or the defence.
Can the prosecution tender the extract of the committal transcript?
The prosecution seeks to tender an extract of the committal evidence of the complainant as proof of the truth of the assertions contained within the extract. It is proposed that the complainant will not be asked questions by the prosecution on the topics within the extract. Rather, at some point in the trial, the extract will simply be provided to the jury.
Should the above occur, the complainant can still be asked questions on the topic by the defence. This may involve general questions about the nature of her residence with the accused, or putting to the complainant the statements she made at the committal. In the first circumstance, it is possible that the prosecution could seek to re-examine the witness by direct reference to her committal evidence. In the second circumstance, the defence would be putting the committal evidence to the complainant in anticipation of the possibility that the prosecution would seek to re-examine on the evidence. In my opinion, either course potentially places the defence in a very difficult position, being required to choose a course without being clear of the prosecution’s response. In another sense, the approach risks altering the traditional approach to the criminal trial process.
The evidence of the complainant at the committal about the circumstances of her period of living with the accused is clear and relatively concise. In my opinion, the evidence is capable of having reasonable probative value to the prosecution case. If accepted by the jury, it is capable of providing evidence that the complainant did not leave the accused’s home, in a sense relevant to the allegations of slavery, from when she originally arrived at the house to when she departed to Box Hill hospital in 2015. Further, I note the complainant stated in an arguably clear and emphatic manner that she was not allowed to leave their home.
Due to the highly variable quality of the information obtained by the AFP in the VARE interviews, the committal evidence represents evidence on oath on a topic that should have, but appears not to have been, clearly and affirmatively traversed and tested in the many hours over which the interviews were conducted. During the pre-trial arguments in this matter, it has become evident that the overall quality of the VARES, in both the information that was elicited and the process of obtaining the evidence, has been poorly conducted. So far as it is useful to state, it is my opinion that the task of the jury in following and absorbing over 20 hours of these video and audio interviews will be very difficult.
Can the prosecution lead the evidence directly from the complainant?
As above, the prosecution submitted that s 15YM of the Act is permissive in nature. It is contended that the prosecution can supplement the evidence in chief given by way of the VARE procedure by eliciting additional viva voce evidence.
The provisions of the Act are silent as to what procedure is to be followed when a vulnerable witness is called to adduce his or her evidence. It does not provide legislative guidance for the situation that has emerged in the present case, being where the prosecution seeks to place previous representations of the complainant before the jury. This prompts the question as to whether the provisions of the Act prevent the prosecution from placing additional or supplementary relevant evidence from a vulnerable complainant before a jury.
Should the complainant remember a matter she previously did not recall, or which was not brought to mind by a questioner, would this newly recalled evidence not be able to be put before the jury, in circumstances where the prosecution have elected to adopt the vulnerable adult complainant provisions? What if a newly established fact or circumstance emerged in the course of the police investigation between the date of the committal and the calling of the complainant to give evidence? Would this mean that a complainant is prevented from offering an explanation or giving additional evidence on any matters brought to light? What if exculpatory evidence relevant to the issues came to light? In normal circumstances, the prosecution, acting responsibly, would be required to place such material before the jury by asking the complainant for an explanation before the jury. I do not think the s 15YM procedure would prevent such a circumstance from being allowed to occur.
The silence of Part IAD of the Act on the possibility of calling additional evidence can be compared to the position in Victoria, where s 367 of the Criminal Procedure Act 2009 provides:
Use of recorded evidence-in-chief
A witness may give evidence-in-chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of this section.
Further , s 384 CPA provides:
Direct testimony in addition to recording
(1) On the application of the prosecution, the court may direct that the complainant is to give direct testimony additional to a recording admitted into evidence if the court is satisfied that—
(a) the complainant is able and wishes to give direct testimony; and
(b) it is in the interests of justice to do so.
(2)A complainant may be cross-examined and re‑examined in relation to any direct testimony given by the complainant in response to a direction under subsection (1).
Under the Victorian legislative scheme, the prosecution can make an application for direct testimony to be given which is additional to the tendered recording. In the circumstances of potentially exculpatory material coming to light, as described above, it is possible to conclude that, in the case of such potentially significant material, the prosecution would succeed in such an application. Furthermore, the prosecution, acting responsibly, if satisfied that further, potentially important evidence to its case was either not asked about in a police recorded conversation or came to light after a committal, would be bound to apply for direct testimony to be given additional to the pre-recorded interview.
The position in New South Wales is similar, in which s 306U of the Criminal Procedure Act 1986 specifically provides that a vulnerable person may give evidence in chief wholly or partly in the form of a recording:
Vulnerable person entitled to give evidence in chief in form of recording
(1) A vulnerable person is entitled to give, and may give, evidence in chief of a previous representation to which this Division applies made by the person wholly or partly in the form of a recording made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court. The vulnerable person must not, unless the person otherwise chooses, be present in the court, or be visible or audible to the court by closed-circuit television or by means of any similar technology, while it is viewing or hearing the recording.
(2) Subject to section 306Y, a person is entitled to give, and may give (no matter what age the person is when the evidence is given), evidence as referred to in subsection (1) in the form of a recording of a previous representation to which this Division applies made by the person when the person was less than 16 years of age.
(3) If a vulnerable person who gives evidence as referred to in subsection (1) is not the accused person in the proceeding, the vulnerable person must subsequently be available for cross-examination and re-examination--
(a) orally in the courtroom, or
(b) if the evidence is given in any proceeding to which Division 4 applies--in accordance with alternative arrangements made under section 306W.
(4) Subsection (3) does not apply in relation to committal proceedings.
(5) Section 5BA of the Evidence (Audio and Audio Visual Links) Act 1998 does not apply to evidence given as referred to in subsection (1).
The question is then whether, in circumstances where the method in s 15YM of the Act was used to adduce a vulnerable adult’s evidence by video recording, the prosecution is prevented from adducing additional viva voce evidence from that witness. It is notable that the prosecution was not able to point to any previous decision where this issue has been argued or determined. I also note that researchers have failed to locate any like case.
It is clear that many previous representations of the complainant will be before the jury. Primarily, these will be through her recorded evidence, but other matters about which she has spoken following her admission into hospital will also be before the jury. The representations now sought to be adduced were made in the course of the complainant giving sworn evidence. It is my opinion that this fact does not cause the representations to fall into some special category of evidence that renders it inadmissible.
It is my opinion that it is open for the complainant to be asked about these issues. The fact that the prosecution has proceeded by way of s 15YM and successfully sought leave for the evidence to be adduced in that way does not preclude it from seeking to supplement the recorded evidence with viva voce evidence. There is nothing in the Act expressly or by necessary implication which prevents the prosecution from eliciting further evidence from the vulnerable adult complainant.
Furthermore, the Second Reading Speech of the then Attorney-General introducing the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 observed that the protections offered to vulnerable witnesses by the Bill ‘will ensure that witnesses can present their best testimony in court, without intimidation, re-traumatisation, fear for their safety, or undue public embarrassment’.[5]
[5]Commonwealth, Parliamentary Debates, House of Representatives, 29 May 2013, 4226 (Mark Dreyfus, Attorney-General).
Further, in my opinion, nothing contained in the Explanatory Memorandum to the Bill proposed either expressly or impliedly, that limits would be placed on the prosecution seeking to adduce additional evidence from a vulnerable adult complainant. Rather, the Explanatory Memorandum makes it clear that an objective of the proposed legislative regime was to support vulnerable witnesses by enacting a number of relevant supportive measures, including testimonial aids, such as using video recordings. The Explanatory Memorandum material stated that, ‘if a witness is unable to give reliable evidence, or is reluctant to give evidence at all, this may adversely affect the outcome of the trial’.[6]
[6]Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 (Cth), 3.
Further, the Explanatory Memorandum pointed out that the Bill would not prevent the ability of an accused’s lawyer from testing the evidence put before the court, including through cross-examination.[7] It is clear that this protection for an accused was enacted, as observed in s 15YM(4) of the Act, which specifically makes the vulnerable adult complainant ‘available for cross-examination and re-examination if he or she gives evidence in chief by a video recording’. Apart from the use of the video recorded evidence, the complainant will be subject to the usual procedure of cross-examination and re-examination.
[7]Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 (Cth), 14.
The position might have resulted in a different conclusion had the words of s 15YM(1) of the Act read ‘A video recording of an interview of a person to whom subsection (1A) applies in a proceeding may be admitted as the evidence in chief if…., etc’. The inclusion of the word ‘the’ might have amounted to a signal that Parliament’s intention was that the use of a video recording was to represent the entirety of a person’s evidence in chief. If that was the case, or if it was made expressly clear that no additional evidence in chief could be given with or without the option of an application to do so by the prosecution, one would expect the legislation to specifically allow for an application to be made by the prosecution for additional evidence in chief to be led.
The provisions are completely silent on the matter. As such, it is my opinion that, in the context of the relevant legislative regime, this legislative silence does not exclude the prosecution from leading additional evidence from the complainant. In the circumstances where s 15YM does not clearly state or provide for an application to be made for further evidence to be adduced, it is my opinion that there is no limitation on the prosecution seeking to lead further evidence to supplement the evidence in chief of the complainant. Further, I do not believe that such a limitation can be necessarily inferred from the language of the legislative provisions or the purpose of the legislation, as stated in the Second Reading Speech.
I observe that the leading of additional evidence could either be by way of viva voce evidence or further video interview, addressing the topic raised in the questions and answers asked at the committal hearing. I note that appropriate notice would be required.
Finally, I note s 15YS of the Act provides that:
General powers of a court
(1) The power of a court to control the conduct of a proceeding is not affected by this Part, except so far as this Part provides otherwise expressly or by necessary intendment.
(2) In particular, the powers of a court to control the questioning of witnesses are not affected.
(3) The power of a court to give leave under this Part includes the power to give such leave subject to conditions.
In short, the Act provides that the power of the Court to control the conduct of a proceeding is not affected by the relevant Part of the Act, unless expressed or implied otherwise. Relevantly, the power of the Court to control the questioning of the witnesses is not affected.
Should the evidence be excluded pursuant to s 137 EA?
For reasons expressed above, I consider that the evidence sought to be led is of probative value. I do not consider that, in circumstances where the prosecution may seek to lead viva voce evidence from the complainant, such a degree of unfairness is visited upon the accused that requires the exercise of my discretion to exclude the evidence sought to be given.
Should appropriate notice be given, additional evidence can be adduced by the prosecution, the defence can cross-examine about the issues raised, and re-examination can occur in the usual manner. The traditional approach to the conduct of a criminal trial can be preserved.
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