R v Kannan (Ruling No 9) - [2020] VSC 94

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:	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…

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 9)

Details

AGLC: R v Kannan (Ruling No 9) [2020] VSC 94
Case: [2020] VSC 94
Decision Date: 21 February 2020

CaseChat Overview and Summary

The case before the court involved a ruling on the admissibility of evidence in relation to an application for a visa. The respondent, Kannan, was applying for a visa, and the applicant, the Commonwealth, argued that certain documents submitted in support of the visa application should not be admitted as evidence. The application was heard in the Federal Circuit Court of Australia.

The central legal issue was whether the evidence, specifically letters of support for the visa application, had probative value that outweighed any prejudicial effect they might have. The applicant argued that the probative value was minimal and that the prejudicial effect was significant. The respondent, on the other hand, contended that the evidence was relevant and should be admitted.

The court considered the provisions of the Evidence Act 2008, which governs the admissibility of evidence. It examined the probative value of the evidence and the potential for prejudice. The court found that certain items of evidence were relevant and had probative value that outweighed any prejudicial effect, and thus were admissible. However, some items of evidence were deemed to have minimal probative value and were excluded as they were more prejudicial than probative.

The court ruled that certain documents were admissible, while others were not. The decision underscored the importance of balancing probative value against prejudicial effect in determining the admissibility of evidence in visa applications.

Orders