Re Kannan & Anor (Ruling No 13) - [2020] VSC 805

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.…

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 Re Kannan & Anor (Ruling No 13)

Details

AGLC: Re Kannan (Ruling No 13) [2020] VSC 805
Case: [2020] VSC 805
Decision Date: 1 December 2020

CaseChat Overview and Summary

The matter before the court involved two defendants, Kannan and an unnamed co-defendant, who were charged with possessing a slave and exercising powers over that slave. The case was heard in the Federal Circuit and Family Court of Australia. The defendants raised objections to the admissibility of certain passages in a supplementary statement provided by the complainant. The court had to decide whether these objections were valid under the Evidence Act 2008.

The court examined whether the supplementary statement in question was admissible under the exceptions to the hearsay rule, specifically considering whether the statement was relevant to a matter in issue and whether its probative value outweighed any prejudicial effect it might have. The defendants argued that the statement contained inadmissible hearsay, which could prejudice the jury against them. The court considered the nature of the charges and the context in which the statement was made, weighing the relevance of the content against potential prejudice.

After reviewing the evidence and the arguments presented, the court determined that certain passages of the supplementary statement were inadmissible. The court found that these passages contained hearsay that was not relevant to the matters in issue or whose prejudicial effect substantially outweighed its probative value. As a result, these parts of the statement were excluded from the evidence. However, other parts of the statement were deemed admissible as they met the criteria set out in the Evidence Act.

The final orders of the court were that the inadmissible parts of the supplementary statement were not to be presented to the jury. The court also directed that the proceedings would continue with the admissible evidence. This decision was crucial in ensuring that the trial proceeded fairly, with only relevant and probative evidence being considered by the jury.

Orders