R v Kannan (Ruling No 9)

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:	11, 12 & 13 of February 2020
DATE OF RULING:	21 February 2020
CASE MAY BE CITED AS:	R v Kannan & Anor (Ruling No 9)
MEDIUM NEUTRAL CITATION:	[2020] VSC 94

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CRIMINAL LAW – Ruling – Visa Applications – Supporting documentation for visa application – Letter of support for visa application – 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 with Ms S. Bruhn and Mr Y. Hardjadibrata	Commonwealth Director of Public Prosecutions
For Kumuthini Kannan	Dr G. Boas with Mr A. Imrie	Stary Norton Halphen
For Kandasamy Kannan	Mr J. Kelly SC with Mr A. Patton	Peter Lunt Lawyers

HIS HONOUR:

Introduction

The prosecution seeks to tender into evidence the five visa applications, namely the records of the Department of Immigration and Border Protection [‘the department’]. Each application relates to entries, and attempted entries into Australia by Rajalakshmi Natarajan [‘the complainant’] between 2005 and 2007. The second, third and fourth applications were rejected by the department, with the first and fifth attempts being successful. On the last application, which was successful, the complainant entered Australia on 5 July 2007.

Each visa application comprised of an application form and a series of associated documents was also attached. For convenience, unless otherwise stated, I shall describe all the documents presently under consideration as ‘the visa applications’.

The visa applications are proposed to be tendered through the evidence of Benjamin Nicholls, formerly a principal migration officer with the department. The documents form part of the records of the department and were extracted from the files of the Australian Consulate in India.

As well as documents relating to the complainant, the prosecution seeks the tender of documents relating to Ms Vimala Jothmani, another woman who entered Australia and resided and worked for the two accused for a period of time.

Both accused object to the tender of the visa applications, and the Jothmani documents.

The visa applications

As above, there are five applications. The prosecution provided a table summarising the contents of each Visa application. For convenience, the table is annexed to this ruling as Annexure 1.

In general terms, each application comprises a Form 48R application form with attached documents variously including typed letters addressed to the Australian Consul-General in India under the signature of the complainant, letters from Kandasamy Kannan to the complainant supporting the visa applications, letters of sponsorship of the complainant addressed to the Australian Consul-General from Kandasamy Kannan; and on two occasions, letters from the complainant to “Dear son Kannan, daughter Kumithini”, and the children described as “grandchildren”, letters from Mr Kannan to the complainant, applications for x-rays of the complainant with radiologist’s declarations, and various other associated documents, including letters of support for the applications from various individuals.

Relevant legal principles
Slavery

In Ho and Others v the Queen,[1] a case involving the use and possession of slaves in a context of sexual servitude, the Court noted the evidence in that case involved the women’s activities at work and leisure being strictly controlled. In particular, their passports had been removed, they were restricted to their workplaces and premises in which they lived, they had no keys to their residences, and were not allowed outside unless accompanied. Further, there were limitations to their remuneration that were the subject of control. In respect of the concept of the ‘powers attaching to the right of ownership’ in the statutory definition of slavery the Court observed that the trial judge had correctly identified:

…the essential idea that possession of a slave was the exercise of a power associated with ownership, and ownership meant the complete subjection of the will of one person by another’.[2]

[1][2011] VSCA 344.

[2]Ibid at [27].

Further, the Court held that:

There are number of possible indicia of a slave, including being the subject of a sale and purchase; being used at another’s behest without restriction; being exploited by receiving wholly inadequate remuneration for one’s labour; being physically confined; being denied the choice between continued service and freedom; and being deprived of the means of returning to one’s country of origin.[3]

[3]Ibid at [32].

Further, that:

….the exercise of dominion by one person over another was to be determined having regard to all the incidents of the relationships between the applicants and the women said to be slaves.[4]

[4]Ibid at [33].

Similar observations were made by the High Court in R v Wei Tang[5] in holding that:

….how a jury is to distinguish between slavery, on the one hand, and harsh and exploitative conditions of labour, on the other? The answer to that, in a given case, may be found in the nature and extent of the powers exercised over a complainant. In particular, a capacity to deal with the complainant as a commodity, an object of sale and purchase, may be a powerful indication that a case falls on one side of the line. So also may be the exercise of powers of control over movement which extend well beyond the powers exercised in the most exploitative of employment circumstances, and absence of payment for services.[6]

[5][2008] HCA 39.

[6]Ibid at [44].

Not all the characteristics or indicia of slavery noted above may be alleged by the prosecution in the present case, nor proven to the satisfaction of the jury. The prosecution case is that some of these indicia existed in the present case. In this regard it is noted that the Code[7] defines ‘slavery’ as the condition of a person over whom any or all the powers attaching to the right of ownership are exercised. [emphasis added]. It is thus not incumbent on the prosecution to prove all the indicia of slavery existed in order to satisfy the jury that a condition of slavery existed. Furthermore, it will be a matter for the jury to determine whether the ‘line between exploitative employment and slavery had been crossed’.[8]
[7]Criminal Code Act 1995 (Cth).
[8][2008] HCA 39 [34].

As to the proof of slavery, I note the conclusions of the Queensland Supreme Court in R v Kovacs,[9] a case of slavery in which Muir J, with the agreement of de Jersey CJ, held that:

The offence of slavery is not one constituted by the doing of prescribed acts. It is an offence which, in this case at least, is constituted by a course of conduct which comprises a number of acts over an extended period. The jury has to be satisfied of the elements of the subject offences beyond reasonable doubt; not of all the matters relied on by the prosecution in proof of such elements. There was no requirement for the jury to achieve unanimity as to the facts from which they derived their ultimate conclusion.[10]

[9][2008] QCA 417.

[10]Ibid at [41].

The observation of the court in Kovacs lends weight to the conclusion that a charge alleging slavery, like any other charge alleging a crime, can be comprised of circumstantial case made up of a series of facts and circumstances which when assessed in combination, can lead to a conclusion by a jury that the offence of slavery is proven beyond reasonable doubt.

It is worth noting in passing that the decision in Kovacs also confirmed that pleading an offence of slavery between certain dates does not require the prosecution to prove that the condition occurred on every day between the dates alleged.[11]
[11]Ibid at [43].

Relevant legislation

The prosecution submits that the extracts are admissible as business records under s 48 and s 69 Evidence Act 1995 [‘the Act’]. Each section provides:

48 Proof of contents of documents
(1)A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods–
(a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question;
(b) tendering a document that –
(i)is or purports to be a copy of the document in question; and
(ii)has been produced, or purports to have been produced by a device that reproduces the contents of documents;

(c)if the document in question is in an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)- tendering a document that is or purports to be a transcript of the words;
(d)if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used to retrieve, produce or collate it-tendering a document that was or purports to have been produced by use of the device;
(e)tendering a document that –
(i)forms part of the records of or kept by a business (whether or not that business is still in existence); and
(ii)is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;

(f)if the document in question is a public document – tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed –
(i)by a person authorised by or on behalf of the Government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory; or
(ii)by the authority of the Government or administration of the State, the Commonwealth, another State, a territory or a foreign country; or
(iii)by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.

(2)Subsection (1) applies to a document in question whether the document in question is available to the party or not.
(3)If the party adduces evidence of the contents of a document under subsection (1)(a), the evidence may only be used –
(a)in respect of the party’s case against the other party who made the admission concerned; or
(b)in respect of the other party’s case against the party who adduced the evidence in that way.

(4)A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by –
(a)tendering a document that is a copy of, or an extract from or summary of, the document in question; or
(b)adducing from a witness evidence of the contents of the document in question.

69 Exception – business records
(1)This section applies to a document that –
(a)either –
(i)is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii)at any time was or formed part of such a record; and

(b)contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2)The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made –
(a)by a person who had or might be reasonably by supposed to have had personal knowledge of the asserted fact; or
(b)on the basis of information directly or indirectly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of that asserted fact.

(3)Subsection (2) does not apply if the representation –
(a)was prepared or obtain for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b)was made in connection with an investigation relating or leading to a criminal proceeding.

(4)If –
(a)the occurrence of an event of a particular kind is in question; and
(b)in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind –

the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.
(5)For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

The prosecution case

Relevant to the present application, the prosecution case is that there are a number of qualities and characteristics pertaining to the complainant’s circumstances when residing at the accused’s home from which the jury can infer that she was in a condition of slavery at the hands of the two accused for a period of time between the dates specified in the indictment. An important feature of this condition is the assertion that control was exercised over many aspects of the complainant’s life, particularly the control over her movements. The prosecution will argue to the jury, that an aspect of control is established by such things as the taking and retention of the complainant’s passport on her arrival into Australia, allowing her one-month visa to lapse, allowing her passport to lapse and not renewing it, the removal of her identification documents, prohibiting her from leaving the house on her own, locking her inside the house when the family travelled overseas, and preventing her the means of returning to her home country.

The prosecution argues that further aspects of control over the complainant included controlling her physical well-being by having an exclusivity of control over her food, lodging and medical care, by providing inadequate and regular remuneration, by refusing requests for return home to India, by isolating her from family and friends in a society alien to her, and by placing her in fear of punishment for disobedience to follow instructions.

The prosecution case is that the accused controlled all aspects of her life when she was living in their home in Australia, and that this was in the overall context of the complainant’s illiteracy, her lack of English language, and inability to navigate a culture which was alien to her.

The prosecution submissions

In its written outline of argument the prosecution put forward reliance on the evidence against both accused for the following reasons:

(a) To provide a history of applications in previous travel to Australia by the complainant;

(b) To prove the knowledge by the accused of the circumstances of the complainant travelling to Australia;

(c) To provide evidence of the role of the accused in sponsoring and creating documentation in support of the applications; and

(d) As against both accused, to rebut an anticipated defence that the complainant was a beloved family member brought to Australia for that reason or that the complainant was sponsored to provide “emotional support for Mrs Kannan”.

The prosecution also argued that in a letter of sponsorship dated 14 June 2007 there are a series of false statements made by Mr Kannan, and that they should be before the jury. These are statements about the complainant’s visit being genuine and for the purpose of helping Mr Kannan care for his children, that the complainant would not stay beyond the expiry of her visa, that he would not support the unlawful stay of a tourist, and vouching that the complainant will comply with immigration rules.

It is argued these are lies told as part of the commission of the alleged offending and not merely statements of future intention. In other words it is suggested that the statements were made in order to commit the offence. That is, that they were told in order to place a misleading account of the complainant’s visa application to the department, and enhance the prospect of success of what became the final application.

The prosecution case is that these alleged lies are capable of showing the true nature of what the accused intended, and to show the motivation of the accused to bring the complainant to Australia for domestic employment rather than assistance for Mrs Kannan. The prosecution alleges that this conclusion is fortified by the process of refinement that occurred in the failed applications to the point where the 2007 application was successful after a much more limited purpose for the sponsorship was stated in the final visa application.

In oral submissions the prosecution argued that within the documents there are statements that amount to circumstantial evidence admissible against both accused which establishes motive of each accused in committing the alleged offences, namely to source free or cheap domestic labour from India for childcare and domestic services.

The prosecution case is that the domestic and financial circumstances of the accused as revealed in the documents demonstrates a sense of desperation that explains the motive alleged. Further, that as changes in the visa applications occurred, the information provided to the department changed, an example being a statement of Mr Kannan in a letter to the department that the complainant was not coming to Australia to provide childcare or housework, but emotional support for Mrs Kannan, and not being paid for her visit, in turn supported by the assertion that in fact the complainant was a wealthy woman, who owned a series of properties, and had income generating enterprises.

The prosecution also argues the evidence is contextual of what occurred to the complainant after she arrived in Australia by demonstrating the struggle to get the complainant into Australia.

The prosecution argued that the proposed evidence does not amount to tendency reasoning, and the jury will not be asked to reason in that way. Rather, it is submitted, the evidence proves a relevant relationship and context, notwithstanding the possibility that there may be elements of tendency or coincidence contained within the evidence.

The prosecution points to Mr Kannan’s statements as being relevant to the charge that he is exercising some of the indicia of ownership or use of a slave. It is argued he has made a series of admissions by his written statements in the associated documents that he has the ability and power to control the movements of the complainant, by the stated provision of support for her.

The prosecution points to the tone of consistently thematic statements by Mr Kannan in the sponsorship letters where he makes repeated solemn declarations as to his honest and ethical intentions with respect to the proposed treatment and support of the complainant; and promised adherence to the laws of Australia. Further, the prosecution points to the extent both accused went to in providing a wide variety of supporting documentation, some authored by third parties from whom support to the applications was sought.

As against Mrs Kannan the prosecution argues that by virtue of s 87(1)(a) of the Act the representations made by Mr Kannan are admissible against Mrs Kannan, as admissions having been made with her authority or as her agent. Alternatively, it is argued that pursuant to s 87(1)(c) the representations made by Mr Kannan were made acting in a common purpose of applying to get the complainants visa, this being put as an approach to the admissibility of evidence, not relating to criminal liability of the accused.

Further, the prosecution argues that the five visa applications viewed together, and viewed as part of an overall circumstantial case, demonstrate the true nature of the relationship that existed between the complainant and both accused as being one of one of the employment of a domestic servant, rather than describing a relationship involving a beloved de facto family member who would provide assistance for love and affection. The prosecution points to the true nature and context of the employee relationship as being one in which the complainant was kept in a condition of slavery involving restrictions on movement, providing little remuneration, keeping the complainant’s passport, living in confined circumstances, and not arranging for medical assistance until the point where the complainant was removed from the home by ambulance.

The prosecution further argues that the engagement of the complainant to provide cheap domestic services from 2007 did not occur as an isolated event, but in the broader context of having the complainant brought out to Australia on an earlier occasion to provide cheap domestic services. It is argued that the visa applications are demonstrative of this.

The prosecution also point to the last visa application which involved a significant modification in language and approach from previous failed applications. In essence, it was submitted that as a result of the rejection of a series of applications, the accused modified and refined succeeding applications to maximise the prospects of an application being successful. In particular, the prosecution points out that in the last application the accused removed any suggestion that the complainant would provide domestic support or assistance for the family, but rather narrowed the purpose of the application to sponsor the complainant for a significantly limited period on the purely personal basis of the complainant providing care and emotional support as a loved and respected de facto family member to Mrs Kannan.

The prosecution also points to the fact that all the applications are written in English, a language the complainant asserts she is unable to speak.

In proving the involvement of Mrs Kannan in the visa application process the prosecution also point to evidence that Mrs Kannan had a role in the drafting of documents in support of the applications. In this regard the prosecution points to a letter written by Mrs Kannan on 6 December 2006 and addressed to the department. In a later conversation with police, Mrs Kannan is said to have admitted writing the letter. The prosecution submits this is an integral admission that reflects her involvement in the creation of the visa applications. It is argued that the jury can be satisfied that Mrs Kannan drafted and typed at least one letter of support, which on its face was made to appear as though it was written by the complainant. In that letter the complainant appears to assert that she owns houses and acres of land with a significant income from leasing houses, coconut plantations, paddy fields and a sugar cane plantation, and that she does not need to go to the other end of the world to do housework and earn money. Of this letter, and similar letters in the visa application bundles, the prosecution submits the jury can draw the inference that the complainant did not write this letter, letters of this kind, as she is illiterate. The prosecution will ask the jury to infer that the letters of this kind were written by Mrs Kannan. Further, the prosecution adds that in her VARES the complainant maintains she had little to do with the preparation of the applications, and that this was done by the accused.

It is noted that the last application is for a 3-4-week visit period, and is put on the basis that the complainant’s short-stay visitors’ visa would be for support to Mr and Mrs Kannan and their children whilst Mrs Kannan recovered from surgery. It was made clear that it is not for childcare purposes.

The prosecution also relied on the evidence of the complainant’s son-in-law, Jawahar Krishnan given at the committal hearing. The prosecution points to evidence when it was put to Krishnan, that ‘they’ made arrangements for the complainant to go to Australia. The agreement according to Krishnan was that ‘they’, meaning Mr and Mrs Kannan, did everything. I also note the contents of the affidavit of Krishnan. I shall address these matters in a later ruling concerning the admissibility of Mr Krishnan’s evidence more generally.

The defence submissions
Submissions of Mr Kannan

Mr Kannan objects to the tender of the applications and submits that none of the arguments put forward by the prosecution for the admission of the applications and their supporting documents are relevant to any facts in issue in the trial. Further, the material bears no relationship to the elements of either alleged offence, or the indicia of slavery. In particular, it is argued that the material does not add to the proof of whether the accused possessed or exercised ownership of a slave.

It is submitted that the material goes no further than to identify that at particular points in time the accused sought to have the complainant travel to Australia to provide personal assistance to both accused.

With respect to the prosecution submission that there a number of false statements attributable to Mr Kannan, it is submitted on behalf of Mr Kannan that there is no evidence that the statements are false, that they are simply statements of future intention that are not capable of being used to demonstrate a particular state of mind at the time of making the statements. It is argued that the statements are not capable of assisting the jury to determine the state of mind of the accused in relation to the charged offences. It is further submitted that if used, there is a risk that these statements may be used by the jury to attack the credit of Mr Kannan.

It is also submitted that if the content of the documents are relevant to the question of motive, it can only relate to offences under the Migration Act 1958 (Cth), not the matters alleged in the indictment.

It was submitted that if all the material is allowed into evidence as context evidence, there is a risk of tendency reasoning being employed by the jury.

Further, it was submitted that the previous unsuccessful visa applications are irrelevant, and contain inadmissible opinion evidence.

It is submitted that insofar as the prosecution relies on the decision in Kovacs, this should be distinguished, and offers no assistance to the prosecutions arguments for admissibility.

Further, it is submitted that if the representations are led in evidence there is a risk that the jury may regard the evidence as extending the period of offending, as well as giving the impression of pre-planning. It was argued that there are elements of the statements made by Mr Kannan that are of low probative value and highly prejudicial about Mrs Kannan’s personal circumstances, and these should not led. It was also argued that the prejudicial nature of the material is not curable by judicial direction and there is a risk that the jury may improperly use the evidence. Without being specifically stated in written outlines, it is assumed that the defence are seeking the material to be excluded pursuant to s 137 of the Act.

Submissions of Mrs Kannan

Mrs Kannan adopts the submissions made on behalf of Mr Kannan and also objects to tender of the applications. It was conceded that some of the material contained in the visa applications can be placed before the jury by way of a statement of agreed facts. No further advancement has emerged about whether this is possible.

It was submitted that the prosecution cannot use the information contained within the visa applications as going towards the proof of motive of Mr and Mrs Kannan in bringing the complainant to Australia to obtain cheap labour and therefore put her in a condition of slavery.

Counsel for Mrs Kannan noted the failure of the prosecution to raise motive specifically in the Summary of Prosecution Opening filed by the prosecution.

It was submitted that most of the evidence said to relate to motive cannot be attributed to Mrs Kannan, as it is apparent that it was written by Mr Kannan. It was argued that the prosecution is seeking to attribute Mr Kannan’s statements Mrs Kannan. Counsel for Mrs Kannan noted that the prosecution reasoning utilises s 87 of the Act, that the statements of Mr Kannan can be interpreted as admissions, and by virtue of s 83 of the Act, are admissions made with the authority of Mrs Kannan. It was submitted that such an approach is not proper or appropriate.

Counsel further argued that if the information contained in the visa applications amounts to motive, then all it is capable of demonstrating is a motive to bring the complainant to Australia to carry out domestic work. If so, then the evidence does not reach the threshold of relevance and admissibility for the purposes of establishing a charge of slavery. In this regard it was submitted that even if the evidence was relevant in a tangential way – the case being a circumstantial one – then the evidence is too prejudicial to be admitted. It was argued that the probative value of the evidence is outweighed by the prejudicial nature of it.

With respect to prejudice, particular reference was made to the mental health issues suffered by Mrs Kannan and that material of this kind is prejudicial and should not led in evidence, even if some or all of the material comprising the visa application is allowed to be adduced. It was argued that if this kind of material is allowed into evidence it may cast Mrs Kannan in an unfavourable light, particularly because some of the evidence of the complainant was that at times Mrs Kannan exposed the complainant to physical and mental abuse, and on occasions was described as ‘torture’.

Counsel noted the amount of alleged post-offence lies the prosecution seeks to place as evidence before the jury and pointed out the risk of prejudice that may arise from also leading evidence that suggests Mrs Kannan may have also been involved in telling further and repeated lies. Namely, to the Australian government in relation to breaches of border control laws.

It was also submitted that the evidence clearly amounts to tendency evidence and should not be admitted as the prosecution have not given notice pursuant to s 97 of the Act. It was submitted that in putting forward the evidence showing motive to bring Ms Natarajan to Australia for the purpose of obtaining cheap and/or free labour, that is slavery, this was capable of revealing a tendency on the part of the accused to engage in the process of applying for a visa for a person to come to Australia for that purpose.

Conclusions

In my opinion the visa applications are admissible as business records. I note that the complainant was asked to comment on each of the applications in VARE 6. No application has been made to exclude these questions and answers, so it is to be assumed that there will be evidence of their existence before the jury. However, if this application for the exclusion of the visa applications is to succeed, then what the complainant has said about these applications will be before the jury, but the applications themselves, will not.

At a basic level, on being adduced into evidence there is little doubt that it will be open to the jury to conclude on the visa application evidence and the history of attempts for the complainant to obtain a visa and enter Australia. That observed, the fundamental question for determination on this application is what relevance these applications have to the allegations of use and possession of a slave. In this respect the prosecution argues that it was the two accused who arranged and controlled the application process to facilitate the entry of the complainant into Australia, and that these documents evidence those arrangements, and the role of the accused in making the arrangements. The prosecution argument is that the evidence of these arrangements, and the way in which the visa application process was carried out by the accused, is relevant to proof of the alleged offending.

In my opinion it will be open to the jury to conclude that the visa applications when viewed together are capable of demonstrating the involvement of both accused in the visa application process, which occurred after the complainant returned to India at the conclusion of her first visit in 2004.

It is also open to the jury to conclude that the failed applications were part of the one process, being the singular endeavour to bring the complainant to Australia for a second time, and that each failed application was simply a part of the one continuing objective.

I do not consider that the evidence of the visa applications should be characterised as amounting to tendency evidence. The efforts of the accused as evidenced across the visa application documents represent a series of acts carried out, in the form of attempts made, with the singular intention of obtaining the complainant’s entry into Australia. It will be a matter for the jury to determine what the purpose of the proposed entry was. The prosecution argues it was for the purpose of domestic work. The circumstances surrounding these applications will not be put to the jury as tendency reasoning and if there was eventually any risk that the jury might use the evidence in an impermissible way, such a risk can be alleviated by appropriate directions. In my opinion the evidence to be presented through the admission of the visa applications is ordinary circumstantial evidence relevant to ultimately establishing the state of mind of each accused, and their motivations.

However, the defence argue that it is one thing for the prosecution to prove both accused involvement in the application process, but it is another to prove that the visa applications can be used to assist in the proving of the condition of slavery, or any indicia of slavery. In other words, the prosecution must establish that the body of evidence is relevant to the proof of guilt on either of the two charges on the indictment.

On 13 June 2016 Federal Agent Taylor conducted the sixth and last recorded interview [‘VARE 6’] with the complainant. During this interview she was shown the series of visa applications, and questions were attempted about them.

The complainant maintained that she speaks no English, and cannot read. She stated on a number of occasions that she was an illiterate person. A fair reading of VARE 6, as well as the first five VAREs, reveals the complainant as likely to be no more than basically educated, if at all, and as unsophisticated, and unworldly. Her evidence regarding her financial situation suggests that she and her family in India had very modest financial means. In broad terms she asserts across her VARE interviews that her motivation in travelling to Australia and working for the two accused was for monetary reward, which would help to provide herself and her family a better life at home in India.

An analysis of VARE 6, and other VARES, reveals that there were significant difficulties experienced by the AFP interviewer in communicating effectively and clearly with the complainant. It is quite plausible this was in part due to the vulnerable condition and educational level of the complainant, as well as cultural and linguistic factors. The quality and ability of the interpreter may have also contributed to this. These will all be matters for the jury to evaluate. Nevertheless, despite the difficulties that may be faced by the jury in grappling with the course of these conversations, it is my opinion that it will be open to the jury to accept the complainant’s version of events relating to the application process.

The evidence from the complainant is that her knowledge and understanding was that Mrs Kannan prepared the documents, filled in everything, paid the money, and sent the documents to India for the agent to process. The complainant’s belief is that the agent would organise things once the documents were sent from Australia. The complainant has said that Mrs Kannan told her go to the agent and he would then do everything correctly. She said that Mrs Kannan got everything ready and she, the complainant, ‘signed it’.

The complainant confirmed that the application forms were signed by her, however, it is apparent that on occasions during the VARE interview she expressed confusion as to whether the forms were for a passport, at one point saying of one application form that she did not know it was a visa form. In general terms the complainant asserted that Mrs Kannan prepared the documents, and that she, the complainant, did not.

In my opinion there is sufficient evidence from the complainant’s statements in the VARES for the jury to be satisfied that Mr and Mrs Kannan were in overall control of the application process whilst in Australia, but also having overall control of how and in what circumstances the complainant would take required actions in India. Apart from what the complainant says about this aspect, there is other evidence bearing on the alleged involvement of both accused that the jury can assess.

Further, it appears not in dispute that one of the letters provided to the department under the complainant’s name was authored by Mrs Kannan.

The complainant maintained a general lack of knowledge, involvement and understanding about the visa applications processes. She said that Mrs Kannan would tell her son in law what to do, and then he would take her to the agent. She could not go there by herself as she said she is illiterate. These assertions about her illiteracy and scarce involvement in the application process is sprinkled throughout the 6 VARE recordings. It will of course be entirely a matter for the jury if the assertions are to be accepted.

Furthermore, the complainant’s evidence is that Mrs Kannan, ‘got me here and then she kept me’. The complainant referred to the previous time Mrs Kannan kept her in Australia for six months, and sent her back, so she thought this time, being in 2007, would be for another six months and then she would go back. The complainant’s evidence is that once she was in Australia, Mrs Kannan said she cannot send her back.

With respect to the role played by Mr Kannan in the application process, it is clearly evident from the associated visa application documentation that Mr Kannan signed a number of letters of sponsorship, as well as letters addressed to the Australian immigration authorities. In my opinion, it is well open to the jury to accept that he was intimately involved in the application process.

In broad terms, the complainant’s evidence describes that once she had arrived in Australia in 2007, from the point when her passport was taken by Mrs Kannan, the period following was characterised by a broad range of activities, including unremitting domestic work in the Kannan’s house, cooking, cleaning and caring for the accused’s children. If this evidence is accepted by the jury, these aspects constituted work on the part of the complainant, which was not put forward as a basis of the last application for a short-stay visa. The effect of the evidence contained across the VARES is capable of satisfying that the work performed was under the direction of Mrs Kannan. Without descending into the detail of the accused’s alleged actions over a period of almost 10 years, the complainant’s evidence, if accepted, is capable of establishing to the jury’s satisfaction that for number of reasons, not the least of which was overall control of the complainant’s circumstances, a number of the indicia of slavery existed. Whether these together amounted to a condition of slavery between the dates set out in the indictment is a matter for the jury. There are very many instances throughout the VARES in which the complainant describes aspects of her time with the two accused that are capable of amounting to conditions of slavery. Whether these turn out to be proven is entirely a matter for the jury’s consideration.

If the complainant’s evidence is accepted, the complainant resided with both accused for about 10 years in circumstances where both were beneficiaries of the activities performed by her in the house. Again, if accepted, both were involved in the seizure and retention of the complainant’s passport and thus both will be argued to bear the responsibility for the restriction of her movements, leading ultimately to the point where her passport expired, and restricting her ability to return to India. The prosecution will argue both were responsible for restricting her movements at the times of the family’s travel on holidays overseas. I note that no evidence as to the whereabouts of the expired passport appears on the prosecution materials.

The question to be determined on this application is whether the evidence under challenge is admissible against either, or both accused, in proof of the allegations that they used or had possession of a slave.

The history of visa applications, supplemented by the evidence of the complainant, is capable of establishing by circumstantial reasoning that the motivation of the accused was to arrange the successful entry of the complainant into Australia to work for the two accused. In my opinion the final application cannot be assessed in isolation from the earlier applications, in particular, the first. An analysis of the complainant’s statements throughout the VARE recordings that are relevant to the first period she lived with the Kannan’s reveals that for that period the complainant engaged in performing similar domestic duties to those that she says took place after her arrival for the second visit in 2007.

As above, the first visa application was successful and the complainant resided in Australia with Mr and Mrs Kannan, for six months. During that period it is the evidence of the complainant that the following occurred:

(a) On her arrival, Mrs Kannan took the complainant’s passport from her, handed it to Mr Kannan, and it was retained;

(b) That Mrs Kannan arranged the visa applications process;

(c) That the complainant had very limited knowledge and involvement in the visa application process, this being handled by Mrs Kannan, and the complainant’s son-in-law;

(d) That the complainant was illiterate and had no English language;

(e) That the complainant’s motivation in travelling to Australia was to earn money for the work she would perform for the Kannans;

(f) That while living with the accused the complainant had little money, and was paid small amounts irregularly;

(g) That the complainant performed work of a domestic nature, including laundry, cleaning, cooking, sweeping and dusting;

(h) That the complainant’s financial circumstances were poor;

(i) That Mrs Kannan insisted on secrecy and monitored the complainant’s activities;

(j) That the complainant was directed not to leave the house, was not provided a key to the premises;

(k) That on occasions of the accused travelling overseas the complainant was directed not to leave the house, which was sealed up;

(l) The complainant was provided with restricted sustenance;

(m) That on occasions the complainant was treated physically and mentally badly by Mrs Kannan;

(n) That the complainant’s return to India in 2004 was arranged by Mr and Mrs Kannan.

Is the evidence relevant?

To be relevant evidence must pass the threshold on s 55 of the Act, namely that if it is accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

In my opinion the applications and the associated documents are capable of demonstrating the involvement of both accused in the process of securing the entry of the complainant into Australia. It is open to the jury to conclude that the objective of both accused was to arrange for the complainant to come to Australia to live with them, and provide domestic services, including, cleaning, washing, cooking, and caring for the accused’s children.

The prosecution case is that the accused were in control of the complainant when she arrived in Australia, and that this controlling condition continued for about a decade. Control, as observed above, is one of the accepted indicia of slavery. The aspect of control is one of circumstance that may be combined with others in the prosecution case to ultimately allow the jury to draw the conclusion that a condition of slavery existed at some time between the dates on the indictment.

One conclusion that is open to the jury, should it be accept, is that the evidence provided by the applications and the associated documents, and the evidence of the complainant, is that the accused controlled the application process. The complainant appears to have been detached from that process, whilst others, including the accused, and possibly her own son-in law controlled it, and managed it. She claimed she knew little about the arrangements being made and that these aspects were being conducted by a relative.

Moreover, it is evident from an evaluation of the overall process, that the material put before the department, insofar as it revealed undertakings of financial support, accommodation, and sustenance, that these aspects were arguably part of the overall control exercised over the day to day affairs of the complainant. These aspects are to be evaluated in the context of her own lack of resources, resourcefulness, illiteracy, and lack of direct family associations in Australia. In broad terms, the letters of support indicated a high level of responsibility was asserted towards the complainant’s circumstances should the visa applications be approved. It was submitted that the statements of intended responsibility demonstrated that so far as the accused were concerned, the complainant was never going to be a free and independent agent.

In my opinion it is open to the prosecution to place before the jury the visa applications in order to demonstrate the controlling aspects of the application process. In my opinion the evidence is capable of showing that control, and the intention of controlling the complainant began before she arrived in Australia. It is relevant to the assessment of a subsequent circumstance of control as an indicia of slavery that the controlling behaviour of the complainant may have begun before her arrival, and that the accused had shown the intention to control the process, and to control her. A jury may more readily accept in the context of assessing a wider circumstantial case that subsequent control may more likely have existed. If the jury accepts that intention, then this is capable of going directly to the proof of one relevant indicia of slavery.

As to whether it was envisaged that the complainant would stay longer than the period of her visa, the tone and content of the letters written by Mr Kannan, the number of applications, the discussions between those involved as to the remuneration to be offered, all are capable of pointing to the conclusion that the objective of the two accused was for the complainant to carry out a wider range of services than the department were informed about, and that the period she would stay would extend beyond the one month visa eventually granted by the department. In short, the jury is able to evaluate the time and trouble that the accused went to in attempting to bring the complainant to Australia, as well as the refinements to the content of the applications, to determine whether the true purpose between the parties making the arrangements for the complainant’s stay in Australia would be for more than the one month period of the short-stay visa.

Furthermore, it is open for the jury to conclude that the complainant was treated as a commodity or chattel by those arranging for her travel and engagement in employment by Mr and Mrs Kannan. In this regard it is open for the jury to conclude that the most significant reason for the complainant’s travelling to Australia was her, and her family’s expectation, that she would earn money which would be sent back to India to assist her family. Treatment as a commodity is also capable of being an aspect of the condition of slavery.

For the jury to be left without the necessary background and context to the complainant’s engagement to work in 2007, would not provide a true and accurate context of the actions that led her to be permitted to travel to Australia, and the circumstances that confronted the complainant when she arrived, the first being the removal and retention of her passport, and thus her ability to leave Australia and return to her and home country should she have wished to do so.

In all the circumstances I rule that the visa applications are admissible evidence against both accused. That said, there are a number of aspects of these applications that in my opinion do not need to go to the jury. These include radiological and medical tests of the complainant, and other administrative types of documents that seem to me to be irrelevant to the jury’s consideration. Accordingly, such material bearing no or little relevance, should be removed.

Insofar as the alleged lies that appear in the letter of 6 December 2006, I accept the submission of the prosecution that these statements are admissible. There is sufficient comparative evidence from the complainant as to her poor financial status for the jury to conclude that the statements made in the letter were false. Further, on the basis that Mrs Kannan admits to have written the letter, purporting to be that of the complainant, in my opinion is admissible against Mrs Kannan. Further, on the basis that Mr Kannan appears to have been intimately involved in the application process, the statements in the letter are admissible against him, as the sponsoring party.

With the above concluded, I will later hear from the parties as to what directions will need to be given to the jury about the use of these false statements. In my opinion the prosecution does not need to open this particular material to the jury.

The prosecution have applied for documents concerning the female Vimala Jothmani to be admitted into evidence as part of the records of the department.

In all the circumstances I am not satisfied that the evidence relating to the entry of this person into Australia, and what appears to have been her domestic work for the accused in the period between the departure and 2007 arrival of the complainant, is of sufficient relevance to the issues before the jury to be admitted into evidence. I note that in a previous ruling given in this matter I excluded evidence from one of the recorded VARES of the complainant that discussed the role of this person. At that stage of these proceedings the role of that person did not appear to me to be relevant, and further, some aspects of that VARE were excluded by agreement as between the parties.

In all the circumstances I will exclude the evidence relating to that person from admission into evidence.

Should the evidence be rejected pursuant to s 137 of the Act?

Submissions were advanced by both accused that some of the evidence contained within the five visa applications should be excluded on the basis that the probative value of the evidence was outweighed by the unfair prejudice that would be occasioned should the evidence be placed before the jury.

In particular, it was submitted that aspects of the mental and physical health of Mrs Kannan that appear within the supporting documents to the applications would be prejudicial, with such prejudice not being able to be remedied by any judicial directions that might be given to ameliorate the risks.

Further, it was submitted that material within the application documents that offer departmental explanations for the rejection of three of the applications is also not admissible as irrelevant. Further, if the material is relevant, then it too should be excluded on the basis of s 137 of the Act.

The prosecution opposes the discretionary rejection of the information above on the basis the information provided in the supporting materials is explanatory of the course taken by the accused to modify and refine the applications to the state I have already discussed. The prosecution submits that the evidence is necessary for a proper understanding of the circumstances that led to approval of the visa application, which in turn led to the arrival of the complainant into Australia.

In my opinion the evidence is relevant, and should not be excluded by an exercise of discretion. The information about the mental health and physical health of Mrs Kannan is explanatory of the course adopted by Mrs and Mrs Kannan to modify and refine the applications to the point where the last application was successful. Further, the conclusions of the department that a number of applications were unsuccessful, and the reasons stated for the rejections, is also capable of explaining the subsequent course the accused took to refine the final sponsorship letter to seek a 3-week short-stay visa. However, this conclusion is qualified to the extent that the state of the evidence must be that Mr Kannan was made aware by the department of the reason for the decision made. It is not necessary that any internal discussions or notations that the department may have had be before the jury – rather, it is the fact of the decision that is relevant.

In my opinion all this information discussed above is relevant, probative and explanatory of the course of conduct adopted. Without the evidence the jury would be left with only a portion of the evidence which by itself, would make little sense.

In my opinion the evidence should be admitted and I decline to exercise my discretion to exclude it from the jury’s consideration.

ANNEXURE 1:[12]

[12]This Annexure replicates the tables prepared and provided by the prosecution to the Court.

IN THE SUPREME COURT OF VICTORIA CASE NO. S CR 2018 0063

AT MELBOURNE CASE NO. S CR 2018 0064

IN ITS CRIMINAL JURISDICTION

Case: S CR 2018 0063
Filed on: 11/02/2020 09:54 AM
THE QUEEN

- v -

KUMUTHINI KANNAN
KANDASAMY KANNAN

Table summarising different visa applications

(as annexed to statement of Benjamin Nicholls)

VISA APPLICATION DATED 5 MARCH 2005

Document	Page Ref	Relied upon
Form 48R Application for Visa dated 5/3/05.	pp.103-112	Yes
Typed letter addressed to the Visa Officer of Australia Consular General dated 5/3/05 with signature of Complainant.	pp.113-115	Yes
Letter from Kandasamy Kannan to the Complainant dated 23/2/05, in support of Visa Application.	pp.116-117	Yes
Letter from Kandasamy Kannan to the Visa Officer of Australian High Commission, India dated 23/2/05.	pp.118-121	Yes
Letter to “son Kannan, daughter Kumuthini and grandchildren” dated 5/3/05 signed by Complainant.	pp.122-123	Yes
Application for x-ray for Complainant and radiologist’s declaration dated 9/3/05.	pp.94-96	No
Immigration Department, Iris Screen for Complainant.	p.97-100	Yes
TT Services receipt for passport of Complainant dated 7/3/05.	p.101	Yes
TT Services letter to Complainant dated 7/3/05 requesting provision of radiological examination.	p.102, Last Column	No

VISA APPLICATION DATED 1 SEPTEMBER 2006

Document	Page Ref	Pressed
Form 48R Application by Complainant dated 1/9/2006.	pp.124-132	Yes
Department of Immigration – details of relatives of Applicant dated 1/9/06.	p.165	Yes
Letter of sponsorship from Kandasamy Kannan to the Visa Officer of Australian High Commission, India dated 19/8/06.	pp.166-169	Yes
Letter from Kandasamy Kannan to Complainant dated 24/6/06 re Visa Application.	pp.170-171	Yes
Letter from Complainant to “Dear son Kannan, daughter Kumuthini and grandchildren” dated 10/7/05.	pp.172-173	Yes
Department of Immigration’s File Notes and other material received in support of Application: · Email from Kandasamy Kannan to DIMA dated 13/9/06 · Email exchange between Electorate Officer for Anna Burke. · Assessment done by Department of Immigration. · Records of Movements to and from Australia by Complainant and by Vimala Jothi Mani.	pp.136-159	Yes
· Note of telephone conversation with Applicant. · File Note of telephone conversation with Kandasamy Kannan. · File Note of Department of Immigration discussion. · Further communications between Department of Immigration and Anna Burke’s Office.
Radiological report on chest x-ray of Applicant dated 4/9/06.	pp.161-163	Yes
Letter from TT Services to Complainant re radiological examination dated 1/9/06.	p.164	No
Letter dated 20/9/06 from Australian High Commission, India to the Complainant refusing her Application for Visa.	pp.133-135	Yes

VISA APPLICATION DATED 16 OCTOBER 2006

Document	Page Ref	Pressed
Form 48R Application for Tourism Visa for complainant dated 16/10/06 and accompanying schedule listing relatives.	pp.178-187	Yes
Letter to the Visa Officer of the Australian Consular General, India signed by Complainant dated 10/10/06.	pp.188-192	Yes
Letter of Sponsorship from Kandasamy Kannan to Visa Officer of the Australian Consular General, India dated 10/10/06.	pp.193-198	Yes
Letter to Complainant from Kandasamy Kannan dated 5/10/06.	pp.199-200	Yes
Statutory Declaration by Kandasamy Kannan in support of Application dated 5/10/06.	p.201	Yes
Letters in support and other documentation provided by Kannan.	pp.202-205	Yes

Letter in support by Anna Burke, Local Member, dated 3/10/06.	pp.207-210	Yes
Letter from TT Services dated 16/10/06 to Complainant requiring radiological examination.	p.177	No
Letter from Australian High Commission, India to Complainant dated 2/11/06 refusing Application for Visa.	pp.174-176	Yes

VISA APPLICATION DATED 6 DECEMBER 2006

Document	Page Ref	Pressed
Form 48R Application for Visa by complainant dated 6/12/06 with schedule of relatives.	pp.215-224	Yes
Letter of Sponsorship for Complainant addressed to the Visa Officer of the Australian High Commission, India from Kandasamy Kannan dated 5/12/06.	pp.225-230	Yes
Letter to Visa Officer of Australian Consular General, India dated 6/12/06; copy of which found during execution of the search warrant, signed by the Applicant.	pp.231-235	Yes
Letter to Complainant from Kandasamy Kannan dated 5/12/06.	pp.236-237	Yes
Further letters in support from Child Family Best Chance dated 24/11/06 and 29/11/06.	pp.240-241	Yes
Letter from TT Services to Complainant dated 25/6/07 requiring radiological examination.	p.243	No
Tourist Application cover sheet lodged by ASPTT from PK Tours & Travels.	p.214	Yes
Letter from Australian High Commission, India to PK Tours & Travels on behalf of Complainant dated 19/12/06 refusing application.	pp.211-213	Yes

VISA APPLICATION DATED 16 JUNE 2007

Document	Page Ref	Pressed
Form 48R Application for Visa for complainant to visit Australia for tourism with accompanying relative schedule dated 19/6/07.	pp.224-254	Yes
Letter to Visa Officer re Application for Visitor Visa dated 19/6/07 signed by Complainant.	pp.255-258	Yes
Sponsorship Letter from Kandasamy Kannan to Visa Officer of Australian High Commission, India dated 17/6/07	pp.259-263	Yes
Statutory Declaration from Kandasamy Kannan in support of Application dated 19/6/07	p.264	Yes

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