R v Kannan (Ruling No 8) - [2020] VSC 368

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
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…

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.

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Details

Case: [2020] VSC 368
Decision Date: 10 February 2020

CaseChat Overview and Summary

In the matter of R v Kannan, the appellant faced charges of intentionally possessing a slave and exercising over a slave any of the powers attaching to the right of ownership, namely use. The case was heard in a court of law where the appellant contested the admissibility of certain evidence given by the complainant during a committal hearing. The complainant, identified as a vulnerable adult, was to be a key witness in the proceedings. The central legal issues the court had to address involved the admissibility of the complainant's previous representations under the Evidence Act 1995 and the potential for cross-examination under the provisions for vulnerable witnesses. The appellant argued that the evidence should not be admitted as it did not meet the threshold for reasonable probative value and that the provisions for vulnerable witnesses precluded the prosecution from leading additional evidence.

The court examined the provisions of the Evidence Act 1995 and the Criminal Procedure Act 2009 to determine the admissibility of the complainant's evidence. The court held that the evidence had reasonable probative value and was therefore admissible. Furthermore, the court clarified that the provisions for vulnerable witnesses did not preclude the prosecution from leading additional evidence, and the complainant could indeed be cross-examined on their evidence. The court reasoned that the protection of vulnerable witnesses was not intended to limit the scope of admissible evidence, provided that the probative value was sufficient and the witness could be appropriately cross-examined.

The ruling confirmed that the complainant's evidence was admissible, and the prosecution could lead additional evidence. The court's decision was based on a balanced interpretation of the statutory provisions, ensuring that the probative value of the evidence was not outweighed by the need to protect the witness. The court's reasoning highlighted the importance of allowing vulnerable witnesses to testify while also maintaining the integrity of the judicial process through the admissibility of relevant evidence. The final orders of the court were to admit the complainant's evidence, allowing the prosecution to proceed with the case as it pertained to the charges against the appellant.

Orders