Re Kannan & Anor (Ruling No 13)
[2020] VSC 805
•1 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0063
S CR 2018 0064
| THE QUEEN | Crown |
| v | |
| KUMUTHINI KANNAN | Accused |
| and | |
| KANDASAMY KANNAN |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20-31 July 2020 |
DATE OF RULING: | 1 December 2020 |
CASE MAY BE CITED AS: | Re Kannan & Anor (Ruling No 13) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 805 |
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CRIMINAL LAW – Ruling – Charges of intentionally possessing a slave and intentionally exercising over a slave any of the powers attaching to the right of ownership, namely use – Supplementary statement of complainant – Objections to admissibility of various passages in the statement – Evidence Act 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms T. McDonald SC with Mr Y. Hardjadibrata and Ms S. Bruhn | 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
This ruling addresses the admissibility of portions of a supplementary statement (‘the further statement’) made by Ms Rajalakshmi Natarajan (‘the complainant’) on 23 March 2020.
The prosecution case
Relevant to the present application, the prosecution seeks to lead additional material which it asserts was lacking in the complainant’s six original VARE statements made in 2015 and 2016. It is argued that the additional evidence will assist in establishing further aspects of the complainant’s personal background, add to and explain her arrival and continued residence in the home of the accused, clarify inconsistences in her VARE interviews to further illuminate the control exercised over her by the accused, and constitute further evidence concerning her physical condition and health.
The prosecution case is that the accused Kumuthini Kannan (Mrs Kannan) and Kandasamy Kannan (Mr Kannan) controlled all aspects of the complainant’s life while she lived in their home in Australia. It is alleged that this occurred in the overall context of her illiteracy, inability to understand or communicate in English and her general lack of capacity to navigate a foreign culture. It is submitted that the material under challenge is relevant to these aspects of the complainant’s situation.
Evidence sought to be led
The evidence sought to be led arises in the further statement, attached to which are a series of copy photographs and documents which are referred to in the statement. The accused object to the admissibility of 12 passages in the statement, which are discussed below.
The Court heard oral submissions from the parties and received written submissions, including a schedule of objections filed on behalf of Mr Kannan.
Submissions on behalf of Mr Kannan
Mr Kannan objects to the admission into evidence of the following paragraphs, or parts thereof, contained in the further statement:
(a) Paragraphs 4 and 5.
It is submitted that the matters in the two paragraphs bear no relevance to any fact in issue in the trial and are unnecessarily emotive of the complainant’s personal history. As to the complainant’s level of education and financial position, it is argued that these matters have been adequately explained in evidence already admitted in the forthcoming trial.
Defence counsel refers to Re Kannan & Anor (Ruling No 9),[1] in which the Court observed that the complainant was incapable of completing the relevant visa documentation. It is submitted that the material contained these paragraphs do not take the evidence bearing on the complainant’s alleged illiteracy any further and is therefore unnecessary.
[1][2020] VSC 94R [85].
Additionally, it is submitted that there is a risk that the evidence will unnecessarily engender sympathy from the jury in its assessment of the complainant’s upbringing, level of education, and status in society. Further, it is argued that the evidence improperly invites the jury to speculate on whether or not the complainant’s background renders its more likely that the relationship was one of master and slave, rather the complainant being a well- regarded member of the extended Kannan family. As to the prosecution case that the complainant’s personal background makes it more likely the allegations are true, counsel for Mr Kannan contends there is no evidential foundation for such allegations. It is submitted that the prosecution improperly seeks to rely on a sympathetic view of the complainant as someone more likely to endure or accept the conditions allegedly imposed on her by the accused and there is absence of evidence to support that claim.
Whilst it is accepted that judicial directions could be given in an attempt to eliminate prejudice, it is submitted that the evidence is unnecessarily emotive and prejudicial, thus evoking an unwarranted and unfair level of sympathy for the complainant, which is unacceptable. As such, given its low probative value, it is submitted that the paragraphs should be excluded.
(b) Paragraph 11(iii)
It is submitted that the passage, “I think two or three people reported this. They came around to the house, I think to check up. They looked at the rubbish bins and everything”, is pure speculation on the part of the complainant. Defence counsel submits there is no other evidence to support the assertion, “I think two or three people reported this”, other than Ms Kelly who was asked to check on the complainant by Mrs Kannan whilst overseas. It is contended that there is other evidence in the prosecution case which addresses the accused going overseas, sealing the doors and instructing her not to answer the door. In oral submissions, it was argued that this passage does not take the evidence any further and is of such low probative value that it should not be placed before a jury.
(c) Paragraph 12(iii)
It is submitted that the passage, “Kumi told her sisters that when they went to India, I would go to Kannan’s friend’s house in Sydney. Kumi told them that my son in law was also in Sydney. Kumi would lie to her sisters”, is inadmissible hearsay. This is on the basis that the complainant purports to give evidence about what Mrs Kannan said to her sisters.
Defence counsel contends there is no evidence that these events occurred. Further, it is asserted that the passage alleges Mrs Kannan lied to her sisters and reinforces the idea that she is a person who tells lies. Should non-leading questions seek to obtain any of the answers in the passage, it is submitted that this would involve placing hearsay assertions from the complainant before the jury.
(d) Paragraph 15 (i)
Counsel for Mr Kannan objects to the paragraph, “Kannan probably told Kumi to warn me not to waste water. He was the one taking care of the bills”, on the basis of speculation. It is submitted there is no suggestion elsewhere that the complainant was privy to the day-to-day running or financial management of the house. Further, defence counsel contends her use of the word ‘probably’ is indicative of its speculative nature.
(e) Paragraph 16 (ii)
It is submitted that the passage, “I think Kumi was scared I would cook everything up and eat all the food while they were away”, is speculative and should not be led in evidence.
(f) Paragraph 16(iv)
It is also submitted that the passage, “I didn’t know I was diabetic back them. I think that’s how I got diabetes”, is speculative and purports to give evidence of an opinion the complainant is unqualified to give.
(g) Paragraph 17 (ii)
It is submitted that the passage, “From 2007, the total amount of money that Kumi and Kannan sent back to India for me was eighty thousand rupees. I have confirmed this amount with my daughter over the phone when I have spoken to her, after my son in law passed away”, contains inadmissible hearsay. Whilst the prosecution submit that it seeks to elicit the passage for a non-hearsay purpose, defence counsel asserts that the prosecution’s refusal to call the complainant’s daughter as a witness renders it inadmissible hearsay.
Should the passage be ruled admissible, it is also submitted that Mr Kannan would be exposed to unfair prejudice in circumstances where he cannot challenge or test the hearsay assertion in cross-examination.
(h) Paragraph 18(i)
It is submitted that the passage, “I had bugs in my tummy”, amounts to speculation and purports to give evidence of an opinion the complainant is unqualified to give.
(i) Paragraph 28
It is submitted that the passage, “My foot felt like there were some insects crawling around inside it”, is unnecessarily graphic and likely to excite revulsion. Defence counsel contends that the accompanying photograph speaks for itself.
(j) Paragraph 34
It is also submitted that the passage, “It is an elephant leg, swollen and cracked”, is unnecessarily graphic and likely to excite revulsion. Once again, the submission is that the accompanying photograph will be sufficient evidence.
(k) Paragraph 36
It is further submitted that the passage, “It felt like insects were crawling in my foot”, is unnecessarily graphic and likely to excite revulsion. It is submitted that the accompanying photograph speaks for itself.
Thus, considering the aforementioned effects of paragraphs 28, 34 and 36, defence counsel for Mr Kannan contends such evidence does not advance the prosecution case any further. It is noted that the jury will have photographs of the complainant’s ailments and medical opinions based on the photographs.
(l) Paragraph 46
It is submitted that the passage, “I was very well at the time that photo was taken. I was very big when I came to Australia. I was big, tall and well. I had a lot of hair. I was pretty, with a long face big body and a full set of teeth”, contains unnecessary commentary from the complainant, much of which is inadmissible opinion evidence. It is submitted that the conclusions apparently drawn by the complainant are a matter for the jury.
Submissions on behalf of Mrs Kannan
Counsel for Mrs Kannan adopts the submissions advanced on behalf of Mr Kannan.
Submissions of the prosecution
In response to the aforementioned objections on behalf of Mr Kannan, the prosecution makes the following submissions:
(a) Paragraphs 4 and 5
It is submitted that these paragraphs detail the complainant’s personal background, lack of basic education and literacy, and work history as an unskilled labourer whose financial position was such that she was unable to save money or acquire any assets of value. It is submitted that the level of detail in paragraphs 4 and 5 is relevant because the evidence is capable of rationally affecting the assessment of the probability of the existence of the following facts in issue in the trial:
i. The probability that a condition of slavery existed, namely, the complainant’s physical confinement at the house of the accused. In particular, the prosecution advances the argument that someone with the complainant’s circumstances is more likely to feel confined to the accused’s house and be dependent on them for basic needs, such as a place to live, money, sustenance, clothing and healthcare.
ii. The probability that the true relationship between the accused and the complainant was one of master and slave, rather than the latter being a beloved family member with wealth and assets.
iii. The probability that someone of the complainant’s background, specifically her lack of education and literacy, her unskilled work history and poor financial position, would be treated in the way she alleges she was treated.
iv. The probability that someone with the complainant’s background would suffer and endure her alleged treatment while living and working at the accused’s home for eight years without attempting to escape.
It is submitted that the probative value of such evidence is high. Further, the prosecution contends that the complainant’s personal history and background is no more descriptive or emotive that the evidence it rebuts. In particular, it notes Mr Kannan’s portrayal of the complainant in letters to the Australian High Commission in India as a beloved family member who was wealthy and owned property in India, and as such, not travelling to Australia to work as a domestic servant at the accused’s home.
The prosecution argues that any unfair prejudice arising from these passages can be alleviated by directing the jury to consider the evidence intellectually and objectively and to eschew any feelings of sympathy or bias towards any witness.
(b) Paragraph 11(iii)
It is submitted that this paragraph clarifies and elaborates on parts of the complainant’s VAREs which describe her treatment by the accused and her physical confinement by them at their home whilst absent overseas for annual holidays. The prosecution submits the passage details her state of mind while alone at the house, induced by the accused who made her fear drastic consequences if she left or drew attention to the fact she was alone.
It is submitted that the complainant’s belief that people were checking up on her and reporting back to the accused is more important than if this was actually the case. However, it is noted that there is evidence that the accused’s neighbour, Gail Kelly, was in fact checking up on her. The prosecution submits that the accused’s conduct in inducing fear in the complainant with respect to drawing attention to her confinement, complaining to others or escaping is as equally relevant as their physical conduct in locking her in the house.
(c) Paragraph 12(iii)
The prosecution submits that this paragraph is one of a series of paragraphs in the further statement that clarify the complainant’s assertions in her VARE regarding her solitary confinement in the accused’s home while they were overseas. It is submitted that counsel will be able to avoid any hearsay assertions by her in examination in chief, through the use of felicitous non-leading questions. It noted that the essential and relevant non-hearsay assertion sought to be elicited is that the Mrs Kannan directed the complainant to lie to her sisters about where she stayed when the accused were overseas. It is contended that this is direct evidence of control over the complainant by the accused.
(d) Paragraph 15(i)
The prosecution submits that this passage is part of a number of paragraphs that clarify assertions in the complainant’s VAREs as to her treatment by the accused. It is submitted that any speculative elements can be avoided by suitable non-leading questions, thus allowing the jury to draw an inference for themselves given the apparent non-hearsay assertion that Mr Kannan was ‘taking care of the water bills’.
(e) Paragraph 16(ii)
In response to the objection to this paragraph, the prosecution agrees it will not seek to elicit the second sentence in the passage.
(f) Paragraph 16(iv)
In reply to the objection to paragraph 16(iv), the prosecution agrees it will not seek to elicit the last two sentences in the passage.
(g) Paragraph 17(ii)
Paragraph 17(ii) is pressed by the prosecution on the basis that it will be elicited for a non-hearsay purpose.
(h) Paragraph 18(i)
The prosecution agrees not to elicit into evidence the passage in paragraph 18(i).
(i) Paragraphs 28, 34 and 36
In response to submissions regarding paragraphs 28, 34 and 36, the prosecution argue that the complainant’s evidence clarifies and completes the description of the condition of her foot after eight years of labour in the accused’s home. It is submitted that no photograph of an injury can completely convey its extent without a description from the injured person describing the level of pain or discomfort felt from the injury.
The prosecution contends that the probative value of the evidence is clear and that any unfair prejudice arising from an emotive response to the impugned passage can be alleviated by appropriate jury directions.
(j) Paragraph 46
Finally, the prosecution contend that the complainant’s description of her physical health and condition at the commencement of her employment completes the full narrative of the state of her wellbeing at the time, beyond what can be conveyed by a two-dimensional photograph. Insofar as the complainant describes how she felt about herself and her wellbeing at the time, it is argued that this is not hearsay or opinion evidence, but rather a contemporaneous expression of her health, feelings and state of mind.[2]
[2]Pursuant to Evidence Act 2008 (Vic) s 66A.
Analysis and Conclusions
In forming the following conclusions, I am of the opinion that each passage must be evaluated in the whole evidentiary context as is currently known. Furthermore, it should be borne in mind that the evidence as a whole supports the proposition that the complainant has low education and is likely illiterate. It seems uncontroversial that she has no medical qualifications or particular expertise, so as to be able to speak about these issues beyond a very basic and uneducated manner.
My conclusions in respect of each passage are as follows:
(a) Paragraphs 4 and 5
The accused submit that these paragraphs bear no relevance to any fact in issue in the trial and are unnecessarily emotive of the complainant’s personal history, thus potentially engendering unnecessary sympathy from the jury. It is also submitted that the complainant’s level of education and financial position are sufficiently explained by other evidence already admitted in the trial.
I accept the submissions of the prosecution with respect to these paragraphs. In my opinion, the matters contained in the paragraphs are admissible as being relevant to the central issue before the jury, namely, whether the complainant was in a condition of slavery at relevant times. The evidence of her background of privation, including her poverty, lack of privilege and poor education is relevant to the likelihood that she became enslaved and whether she was more likely to become enslaved because of her circumstances. Further, her compromised ability to navigate and resist the way in which her day-to-day life evolved in Australia is more easily understood, and capable of acceptance, when her background is taken into account. This is particularly the case when the jury will consider whether she could, or should, have taken action to end her allegedly enslaved circumstances by leaving the accused’s home and returning to India.
In the circumstances, I reject the defence’s submission that the matters contained within the two paragraphs are of low probative value and should be excluded on the basis that the probative value is exceeded by the prejudicial nature of the evidence. In my opinion, there is nothing prejudicial about the evidence.
(b) Paragraph 11(iii)
Insofar as the passage contains an aspect of speculation, I accept the defence submissions that the evidence is inadmissible as to the truth of what the complainant asserts. However, the witness can give evidence that a person, or persons, came to the house while the accused were away and looked at the rubbish bins, if that is what she saw. That is simply evidence of events that occurred. Further, there is evidence that a visit by a neighbour happened on at least one occasion, with that person being called to give evidence before the jury.
I accept the prosecution submission that the evidence of the complainant is capable of demonstrating her state of mind. I note that this evidence is not put forward as being factually true as against the accused. Rather, it is advanced as evidence going to the complainant’s state of mind, namely that she was not free to leave the premises and may be reported to the accused if she attempted to do so. In my opinion, this evidence contributes to the allegation of that the complainant was in a condition of slavery. Further, evidence of her belief is also relevant in explaining why she felt unable to leave the premises and seek assistance.
However, the evidence is not capable of establishing that the accused arranged for other persons to surveil or report on the complainant’s activities while they were away. Without more evidence that this is what either or both accused told her would happen, the probative value of the evidence is only relevant to add the complainant’s state of mind or belief that she was not permitted to, and could not leave, the premises. In my opinion, the jury can be appropriately directed that the evidence is only admissible on that basis and there is no reason to think that such direction will not be followed. I do not consider that the evidence is of such a quality that any prejudice flowing from it cannot be eliminated by suitable directions.
(c) Paragraph 12(iii)
On the basis of the evidence as it stands, the passage is hearsay. Further, it is not relevant to the state of mind of the complainant as to being in a condition or state of slavery. The evidence risks being misused by the jury in that it is capable of impermissibly casting Mrs Kannan as a person who does not tell the truth. In my opinion, this passage is not relevant to the issues that the jury will be required to determine and does not add anything to the prosecution case against either accused.
My opinion would likely be different if the evidence was that the statements were made by Mrs Kannan to her sisters in the presence of the complainant. In such circumstances, the alleged statement could possibly be considered as a lie by Mrs Kannan. However, as the evidence currently stands, the statement is inadmissible.
(d) Paragraph 15(i)
In my opinion, this statement is speculative and should not be led in evidence. The statement relating to what Mr Kannan ‘may’ have told his wife is uncertain in its nature and therefore does not pass the requirement of relevance. The assertion is speculative and appears to be without proper foundation. As a result, the second part of the statement also fails the hurdle of admissibility due to its inherent connection to the first sentence which is inadmissible, and also the lack of evidence supporting the complainant’s opinion that Mr Kannan was ‘taking care of the later bills’. Accordingly, the evidence lacks relevance to any fact in issue before the jury and is inadmissible.
(e) Paragraph 16 (ii)
The prosecution has indicated this passage in the further statement will not be led in evidence.
(f) Paragraph 16(iv)
As above, the prosecution has indicated this passage will not be led in evidence.
(g) Paragraph 17(ii)
It is submitted that the passage, “From 2007, the total amount of money that Kumi and Kannan sent back to India for me was eighty thousand rupees. I have confirmed this amount with my daughter over the phone when I have spoken to her, after my son in law passed away”, contains inadmissible hearsay. Additionally, it is submitted that the second accused suffers an unfair prejudice from its admission due to the prosecution’s refusal to make the complainant’s daughter available as a witness.
In my opinion, the first sentence of the impugned passage is admissible, provided the complainant is making the assertion from her own knowledge of what monies had been sent back to India, or from what she may have been told by either or both accused. The second sentence is stated as a confirmation, presumably meaning it is confirmatory as to what her state of knowledge was that already existed when she received the confirmation. The complainant can be asked about this during her evidence in chief, and depending on her answer, the evidence may or may not be admissible.
My present opinion is that the second sentence in the passage is likely to be inadmissible second-hand hearsay, as the evidence more generally available in the prosecution case is that the financial arrangements were made between Jawahar Krishnan and one or both of the accused. As the evidence is presently framed, information about what monies may have been paid is more likely to have originated from Mr Krishnan, who is no longer available to give evidence due to his death, and therefore now provided by his wife, who is also not a witness to be called by the prosecution.
(h) Paragraph 18(i)
As above, the prosecution has indicated this passage will not be led in evidence.
(i) Paragraphs 28, 34 and 36
In my opinion, these paragraphs are admissible. They do not present evidence that is unnecessarily graphic such as to excite revulsion. Expressions by the complainant that her foot felt like insects were crawling around inside it describes her own level of discomfort, which she is entitled to describe in her own basic terms. The expression that her leg felt or looked like an elephant’s leg, does no more than describe her own feelings and observations about the condition of her own body. The complainant’s developing and deteriorating physical condition during the period of her alleged slavery is a matter of relevance to the jury’s assessment of her condition. As such, she is entitled to explain and describe that condition to the best of her limited ability.
In each case, I do not think that the associated photographs simply speak for themselves. The photographs demonstrate no more than what a foot looked like and do not of themselves explain the complainant’s physical experience of what is depicted. As above, she is entitled to explain, in her own terms, the physical impact of what she could see on her own body.
I do not consider that the evidence should be excluded on the basis that any unfairness or prejudice attaches to the descriptions or photographs of her alleged physical condition. I have also taken into account that the prosecution proposes to place a number of other photographs before the jury, as well as descriptions of the complainant’s medical and physical conditions, which material is at least equally of a similar character, if not more so. I do not consider this material reasonably capable of exciting revulsion in a jury of normal constitution. If necessary, I have no doubt that directions can be given to the jury to treat this evidence in a calm, rational and intellectual manner and I have little doubt that the jury will follow any such directions.
(j) Paragraph 46
It is submitted that the passage, “I was very well at the time that photo was taken. I was very big when I came to Australia. I was big, tall and well. I had a lot of hair. I was pretty, with a long face big body and a full set of teeth”, contains unnecessary commentary from the complainant, much of which is inadmissible opinion evidence. It is submitted that the conclusions apparently drawn by the complainant are a matter for the jury.
It is my opinion that this evidence is admissible. The complainant is entitled to explain in her own terms what physical changes she experienced over the period since her arrival in Australia. Evidence as to her physical condition when she arrived, and the deterioration or changes in such condition over the period she was allegedly enslaved, is relevant to the jury’s assessment of that assertion.
The complainant’s description of the physical changes to her body in this paragraph does not represent inadmissible opinion evidence, but rather a description of her knowledge of physical changes to her own body. I am of the view that she is not venturing an opinion about the cause of the changes, but simply noting that there were changes.
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