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General information, not legal advice.
Supreme Court of Victoria
2024-02-13
Forbes J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Evidence - Advance ruling - Ruling sought that sentencing reasons and appeal reasons are not inadmissible - Where criminal proceedings have concluded and confiscation proceeding remains on foot - Where parties agree that some form of advance ruling is appropriate - Where issue in confiscation proceeding is the extent to which property was not derived from or was not an instrument of the convicted offence - Evidence Act 2008 (Vic) ss 91, 59, 76, 190, 192A - (Cth) , .
1 A property lived in by the Kannan family was subject to restraint and has been forfeited under the Proceeds of Crime Act 2002 (Cth) (the Proceeds Act). The respondents, Mr Kandasamy and Mrs Kumuthini Kannan (together, the Kannans), have brought applications for compensation arising from the forfeiture of that property (the confiscation proceeding). These reasons deal with an application by the Commissioner of the Australian Federal Police (the Commissioner) for an advance ruling as to the admissibility of evidence under s 192A of the Evidence Act 2008 (Vic) (the Evidence Act) in the confiscation proceeding. The Commissioner seeks orders that two documents are not inadmissible by reason of ss 91, 59, and/or 76 of the Evidence Act. The two documents subject to an advance ruling are Justice Champion's reasons for sentence dated 21 July 2021 imposed upon the Kannans following their criminal trial and conviction (Reasons for Sentence)[1] and the Court of Appeal's reasons dated 21 March 2023 in the respondents' appeal against conviction and sentence (Appeal Reasons)[2] (collectively, the Reasons).
2 For the reasons that follow, I have concluded that it is appropriate to make an advance ruling on the admissibility of the Reasons. However, it is not appropriate to exercise the discretion in a general way to waive provisions that render the Reasons inadmissible, when the purpose is to use those Reasons to prove the truth of certain facts in the confiscation proceeding that are not presently identified.
3 On 23 April 2021, following a criminal trial in this Court lasting 49 days, a jury found both respondents guilty of two offences: one of intentionally possessing a slave and one of intentionally exercising over a slave any of the powers attaching to the right of ownership, contrary to s 270.3(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code) (together the slave possession and ownership offences, or the offences). The offences had been alleged to have occurred between 5 July 2007 and 30 July 2015 with respect to Mrs Rajalakshmi Natarajan, an Indian national (Natarajan).
4 On 21 July 2021, the respondents were each sentenced to periods of imprisonment by Champion J. In those reasons, Champion J said:
Detailed submissions have been advanced by the parties regarding the nature and circumstances of your offending. You have both pleaded not guilty of the charges on the indictment and continue to strenuously deny your guilt. In this context, the Court must come to some conclusions regarding the nature and circumstances of your offending for sentencing purposes. Such conclusions must be consistent with the guilty verdicts delivered by the jury.[3]
5 His Honour therefore was required to engage in fact finding for sentencing purposes, consistent with the jury's satisfaction that all elements of the slave possession and ownership offences were established beyond reasonable doubt.
6 The respondents sought leave to appeal both conviction and sentence. Their applications for leave were brought out of time and an extension of time was also sought. The extension of time sought was refused because, for the reasons set out in the Appeal Reasons, an extension would be futile.
7 The respondents are presently serving their terms of imprisonment.
8 By ex parte application on 28 November 2016 made by the Commissioner, orders were made in this Court under s 18 of the Proceeds Act. The orders restrained property that was the residence of the Kannan family and of which Mrs Kumuthini Kannan was the registered proprietor. The orders permitted settlement of a contract to sell the property to an independent purchaser, and thereafter restrained the proceeds of the sale.
9 The Commissioner brought an application for forfeiture of the restrained property on 8 December 2016 (the forfeiture application).
10 The respondents filed various applications seeking orders for exclusion of their interest in the property (the exclusion applications) on the grounds that the property was not proceeds of an offence nor an instrument of an offence within the meaning of s 329(1) and (2) of the Proceeds Act.
11 Both the forfeiture application and the exclusion applications were adjourned until the conclusion of the criminal proceedings.
12 On 16 June 2022 the respondents filed applications for compensation orders under s 94A of the Proceeds Act (the compensation applications).
13 On 17 June 2022 the Commissioner filed applications seeking a pecuniary penalty order pursuant to s 116 of the Proceeds Act against both respondents (the pecuniary penalty applications).
14 By orders made by consent on 23 June 2022, all the respondents' exclusion applications were withdrawn, leaving on foot only the respondents' compensation applications. As a result, the automatic forfeiture provision upon conviction took effect on 20 October 2022.
15 The Commissioner anticipates that the compensation applications and the pecuniary penalty applications will be heard at the same time.[4]
16 The Commissioner's application for an advance ruling on evidence (the advance ruling application) was made in May 2022, at a time when the Kannans had filed material in support of their exclusion applications. As the respondents' exclusion applications have since been withdrawn by consent, there is presently no material filed in support of the remaining compensation applications. The relevant date for service of material to be relied on in support of the compensation applications is 21 February 2024. This means the Commissioner's advance ruling application is presently considered before the Kannans have filed any evidence.
17 The advance ruling application relies on two affidavits of Cenalyne Cortez sworn 18 May 2022 and 17 July 2023. The affidavits exhibit the Reasons, the certificates of conviction signed by Champion J and correspondence seeking consent of the respondents to an order under s 190(1) of the Evidence Act to waive the rules of evidence which would ordinarily render the Reasons inadmissible. Evidence-in chief in applications under the Proceeds Act is by affidavit unless the Court otherwise orders.[5] Matters of admissibility would ordinarily arise at or before trial once all the proposed evidence has been identified. The Commissioner seeks the evidentiary ruling in advance of the trial, and prior to the preparation of its own affidavit material.
18 Section 192A of the Evidence Act provides:
192A Advance rulings and findings
Where a question arises in any proceedings, being a question about:
(a) the admissibility or use of evidence proposed to be adduced; or
(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or
(c) the giving of leave, permission or direction under s 192;
the court may, if it considers it appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.
19 In NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 4),[6] Biscoe J said:
Whether the Court should make advance rulings under s 192A is a discretionary case management decision to be made in accordance with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute.[7]
20 Gleeson J discussed the exercise of this discretion in Australian Securities and Investments Commission, Re Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd ('Re Whitebox Trading'),[8] saying:
The authorities indicate that 'some good reason should be advanced in order that the Court exercise jurisdiction under s 192A'...It may, for example, be appropriate to give an advance ruling 'if all matters relevant to the issue have been or can then be ascertained and if it is clear that a ruling will inevitably be required': TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 (Gaudron J). Further, the giving of a ruling, or the making of a finding, under s 192A may be appropriate where 'a considerable amount of time, effort and money might be saved if the documents were ruled to be admissible now'.[9]
...
A sound reason to refuse the giving of a ruling under s 192A may exist where the proceeding is in its infancy, the issues have not yet been joined because the pleadings have not closed and it is uncertain whether the evidence sought to be the subject of the advance ruling will be relied on at final hearing.[10]
21 Re Whitebox Trading concerned an application by ASIC for an order that client legal privilege did not prevent particular documents in ASIC's possession being admitted into evidence at the final hearing. The documents in dispute were provided to ASIC in response to its statutory investigative powers and without consent of the authors. They included information identified as subject to a claim for client legal privilege by those associated with Whitebox. In the face of this claim, ASIC sought an advance ruling on the question of privilege. The advance ruling was determined on the basis that ASIC sought to tender the whole of the documents and resisted the position that it should identify the use and relevance of the documents prior to any ruling. In granting the ruling, her Honour identified that ASIC in its trial preparation would need to prove every element of its claim for a civil penalty, on which it bore the onus of proof. Her Honour also noted that claims of privilege are commonly determined prior to trial. Her Honour dealt then with the substantive application in respect of each of the disputed documents. In deciding that an advance ruling was appropriate, her Honour said that knowing whether the disputed documents could be relied on was 'a matter of obvious relevance to its [ASIC's] trial preparation'.[11]
22 Section 192A was introduced to overcome the limitations on the use of advance rulings. In TKWJ v the Queen,[12] Gaudron J concluded that that the power to make an advance ruling as to admissibility of evidence was 'not to say that a trial judge has power to give an advance ruling as to the way in which he or she will exercise a discretion if and when a party seeks to have that discretion exercised'.[13] It is clear that an advance ruling under s 192A can determine discretionary questions on the admissibility of evidence.
23 Advance rulings frequently deal positively with the admissibility of evidence. They may deal with admission as a matter of law (whether privilege applies), a question of particular fact (whether an opinion in a report of an expert is admissible under s 76(2)) or evidence of a particular character (whether to permit rebuttal character evidence in a criminal trial).
24 As discussed below, the parties in principle agree that an advance ruling as to the admissibility of the Reasons is appropriate. They disagree on the approach to be taken in such a ruling.
25 In their compensation applications the Kannans bear the onus, on the balance of probabilities, of establishing the grounds necessary to make the compensation orders they seek.[14]
26 In order to obtain a compensation order, s 94A(1) of the Proceeds Act provides:
A court that made a restraining order referred to in subsection 92(1)(b) must make an order that complies with subsection (2) if:
(a) a person (the applicant) has applied for an order under this section; and
(b) the court is satisfied that the applicant has an interest in property covered, or that was at any time covered, by the restraining order; and
(c) a person has been convicted of a serious offence to which the restraining order relates; and
(d) the court is satisfied that a proportion of the value of the applicant's interest was not derived or realised, directly or indirectly, from the commission of any offence; and
(e) the court is satisfied that the applicant's interest is not an instrument of any offence.
27 Proof of the requirements of s 94A(1)(a), (b) and (c) are unlikely to be controversial. The Kannans will no doubt provide evidence of their interest in the property and therefore in the forfeited net proceeds. The fact of conviction of the two offences does not appear in dispute,[15] and it is uncontroversial this will likely be established by the certificates of conviction in accordance with s 178 of the Evidence Act. However, the Kannans are also required to establish by s 94A(1)(d) and (e) both the proportion of their interest not derived from the commission of any offence, and that their interest is not the instrument of any offence. Both of these requirements will be in issue.
28 Section 94A(2) of the Proceeds Act requires any order for compensation to specify the proportion of the value of the respondents' interest not derived or realised from the commission of any offence[16] as found by the court under paragraph (1)(d).
29 Section 329 of the Proceeds Act defines the meaning of 'proceeds' and 'instrument'. It provides property is proceeds if it is wholly or partly derived, whether indirectly or directly, from the commission of an offence.[17] As to instrument, s 329 provides:
(2) Property is an instrument of an offence if:
(a) the property is used in, or in connection with, the commission of an offence; or
(b) the property is intended to be used in, or in connection with, the commission of an offence;
whether the property is situated within or outside *Australia.
(3) Property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence.
(4) Proceeds or an instrument of an*unlawful activity means proceeds or an instrument of the offence constituted by the act or omission that constitutes the unlawful activity.
30 The concept of 'use' of property as an instrument in the Proceeds Act has been considered by the High Court in Commissioner of the Australian Federal Police v Hart ('Hart').[18] Hart involved the automatic forfeiture of the property of third party companies as a result of conviction of an accountant, Hart, of fraud offences associated with a tax minimisation scheme. The companies sought orders transferring their interests in the forfeited property to them. The provision in question at the time, s 102(3), required the applicant companies to establish various matters including that their interest was not 'used in, or in connection with, any unlawful activity'.
31 Describing this as 'the use condition', the majority said:
Satisfaction of the use condition requires proof by an applicant on the balance of probabilities that the thing forfeited was not used in, or in connection with, an act or omission that constituted a relevant offence, and that no legal or equitable estate or interest in that thing and no right, power or privilege in connection with that thing was used in, or in connection with, an act or omission that constituted a relevant offence. Consistently with the construction of equivalent language adopted by the Full Court of the Supreme Court of South Australia in Director of Public Prosecutions v George, use in or in connection with an act or omission that constituted a relevant offence is a broad conception involving practical considerations which do not readily admit of detailed exposition in the abstract. The conception requires neither a causal link between the property and the offence nor that the property was necessary for the commission of the offence or made a unique contribution to the commission of the offence. Implicit in the expression of the condition is that the use can be by any person. Implicit also is that the degree of use need not be proportionate to the forfeiture that has occurred.[19]
32 Thus, at issue in the present proceeding will be the value of the interest of each respondent in the property, the proportion of that interest that was not derived[20] from the commission of any offence under s 94A(1)(d), and whether the property was used as an instrument of an offence.
33 It is not necessary for an applicant to negative all possible offences. As Gordon J said in Hart:
If the CDPP intends to rely upon facts and circumstances which it contends establish that a trial judge should not be satisfied that the use limb is established (or, for that matter, the source limb or the lawfully acquired limb) the CDPP should identify those facts and matters as early as possible...[21]
34 The Commissioner submits that relevant offences in issue are not limited to the two for which the Kannans have been convicted, but are likely to include a further two offences of harbouring in respect of Natarajan: one offence under the Criminal Code (s 271.7F) and another under the Migration Act 1958 (Cth) (s 233E(3)).[22]
35 The Commissioner bears no onus of proof in the compensation applications but intends to rely on evidence to establish that the trial judge should not be satisfied of the necessary matters to make compensation orders. Although the matters about which the Commissioner intends to lead evidence could be done by preparing affidavits of the witnesses setting out the substance of their relevant evidence from the criminal trial, the Commissioner wishes to use the fact finding of Champion J in the Reasons for Sentence, and the findings of Priest, Niall and Macaulay JJA in the Appeal Reasons, or at least some aspects of those Reasons themselves as evidence of facts in issue in this proceeding.
36 The real need for an advance ruling is largely to address the manner in which the Commissioner may lead admissible evidence going to these two issues. The Commissioner identifies the issues to be addressed by this evidence. The first relates to s 94A(1)(d): whether the Kannans can satisfy the Court that the interest in the property was not derived from an offence. The Commissioner submits that evidence will be needed to address the argument that 'because Mr and Mrs Kannan utilised the services of [Natarajan] but paid her minimally, they had the benefit of the money that she wasn't paid and that they could apply to payment of the mortgage.'[23]
37 The Commissioner says the larger, more contentious, issue is the extent to which the property was used as an instrument of an offence, namely the ways in which the property was or was not used to carry out the acts or omissions that constitute the relevant offences. Before me, the Commissioner indicated that it understood from material filed when the exclusion applications were on foot that he anticipated there would be factual dispute about the restraint of the complainant - that she was not kept in shackles nor restrained by locks on doors - matters which if proved would be used to mount a legal argument as to instrumentality.[24] Therefore the facts as to the ways in which control was exercised, including evidence establishing the circumstances in which the respondents possessed and used Natarajan as a slave, would be relevant.
38 Although there was no explicit submission from the parties as to the facts in issue in the criminal proceeding aligning with facts in issue in the confiscation proceeding, it appears that the following issues in the present proceeding will require fact finding including:
(a) the conduct of the Kannans and Natarajan and the extent to which it amounted to possession and control of a person;
(b) the identity of Natarajan as the person in the condition of slavery;
(c) the place at which such conduct occurred;
(d) the ways in which the property was used in, or in connection with, that conduct;
(e) the duration over which conduct amounting to possession or use of Naratjan occurred on the civil standard of proof; and
(f) the calculation of the interests in the property and the proportion was derived from the commission of an offence.
39 The Commissioner's application is said not to seek any positive ruling on admissibility, only that the content of the Reasons are not inadmissible by reason of s 91. The amended application dated 17 July 2023, seeks an order that:
s 91 of the Evidence Act, being a provision within Part 3.5 of that Act, mentioned in s 190(1), does not apply to the Reasons so that the Reasons are not inadmissible on that basis. (emphasis added)
40 He also seeks similar orders that ss 59 (the prohibition on the admission of hearsay evidence) and 76 (the prohibition on the admission of opinion evidence) do not apply. The application is made in respect of the whole of the Reasons.
41 The amended application specifies four grounds for the orders sought. The first is because:
(iii) the matters to which the Reasons for Sentence relate cannot be genuinely in dispute in these proceedings; and
(iv) the application of section 91 of the Evidence Act 2008 (Vic) would cause or involve unnecessary expense or delay.[25]
42 These two matters are particularised by paragraphs A to H of the Application for Ruling which set out:
43 The second, third and fourth grounds allege a real risk of inconsistent findings of fact in respect of the same issue, either between two judges of the trial division or as between a trial division judge and the Court of Appeal, inconsistent with the proper administration of justice.
44 Although the orders sought are that the Reasons be 'not inadmissible', the advance ruling application clearly contemplates the exercise of the discretion under s 190 to waive the rules of evidence, making the Reasons admissible at least provisionally.
45 The common law rule is that the fact of a criminal conviction, and the fact finding of a judge on sentence or appeal associated with that conviction, are not admissible in a subsequent civil action to prove the facts in issue in the civil proceeding.[27] The rationale is expressed by the English Court of Appeal in Hollington v Hewthorn ('Hollington')[28] in two parts. First, that proof of a conviction by itself amounts to no more than proof that the criminal court came to the conclusion that the defendant was guilty of the charge. Judicial findings are essentially characterised as an opinion of a judge based upon hearsay on the conclusion of guilt. Second, as the fact of a conviction would not operate as an estoppel, its admission would make it difficult to determine the weight to attach to that piece of evidence without addressing the underlying circumstances, which may involve substantially retrying the criminal case. This rationale draws into operation the exclusionary rules of evidence found in ss 59 and 76 of the Evidence Act as well as principles of relevance. In Hollington, a certificate that the defendant had been convicted of careless driving was inadmissible as proof that the defendant drove negligently in a subsequent civil claim in negligence for personal injury, because:
In truth, the conviction is only proof that another court considered that the defendant was guilty of careless driving...The Court which has to try the claim for damages knows nothing of the evidence that was before the criminal court...Moreover, the issue in the criminal proceedings is not identical with that raised in the claim for damages...To link up or identify the careless driving with the accident, it would be necessary in most cases, probably in all, to call substantially the same evidence before the court trying the claim for personal injuries, and so proof of conviction by itself would amount to no more than proof that the criminal court came to the conclusion that the defendant was guilty.[29]
(ii) the Evidence Act
46 This common law position has been modified by statute. Part 3.5 of the Evidence Act deals with evidence of judgments and convictions. Section 91 maintains the common law position that evidence of previous judgments and conviction is not admissible to prove facts in subsequent proceedings, in certain circumstances. It provides:
91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
47 Section 91 is not an absolute prohibition. It addresses the use of such material as evidence admitted for the purpose of using those facts found in the first proceeding to prove them in the subsequent proceeding.
(2) In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party... has been convicted of an offence, not being a conviction -
(a) in respect of which a review or appeal (however described) has been instituted but not finally determined; or
(b) that has been quashed or set aside; or
(c) in respect of which a pardon has been given.
(3) The hearsay rule and opinion rule do not apply to evidence of a kind referred to in this section.
49 The practical effect of the exception in s 92(2) is to modify the common law position as to admissibility of the fact of conviction where, as here, the persons convicted are party to a subsequent civil proceeding.
50 Section 178 is an ancillary provision found in Part 4.6 of the Evidence Act. It provides a method for proving convictions or acquittals.
178 Convictions, acquittals and other judicial proceedings
(1) This section applies to the following facts -
(a) the conviction or acquittal before or by an applicable court of a person charged with an offence;
(b) the sentencing of a person to any punishment or pecuniary penalty by an applicable court;
(d) the pendency or existence at any time before an applicable court of a civil or criminal proceeding.
(2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court -
(a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question; and
(b) stating the time and place of the conviction, acquittal, sentence, order or proceeding; and
51 Section 178 does not make admissible that which s 91(1) excludes, but provides a method for proving evidence admissible under s 92(2).
53 In Edwards v State Trustees Ltd ('Edwards'),[31] the issue was whether the criminal culpability of Edwards disentitled her from inheriting under a will because of the forfeiture rule. In considering whether there was error in the trial judge's approach, Santamaria JA considered s 91 and a certificate of a conviction upon plea of an offence of defensive homicide in the subsequent probate proceeding. Both the certificate of conviction and the reasons for sentence were before the trial judge, apparently without objection, as were exculpatory excerpts from Edwards' record of interview. Santamaria JA made reference to ss 91 and 92(2). He discussed the distinction between them. He referred to Prothonotary of the Supreme Court of New South Wales v Sukkar[32] and Prothonotary of the Supreme Court of New South Wales v Livanes,[33] both cases involving the disciplinary jurisdiction of the Supreme Court over legal practitioners. In each, the sentencing reasons could not be used to support findings as to what the practitioner actually did or intended, but did have relevance to their reputation and fitness to practice and could be admitted for that purpose.
54 Accordingly, Santamaria JA concluded in Edwards that it had been open to the trial judge be satisfied of each of the elements of the crime, notwithstanding the exculpatory statements, without regard to the propositions of fact contained in the sentencing reasons.[34]
55 Section 318 of the Proceeds Act applies to proceedings brought under that Act. It provides:
(1) A certificate of conviction of an offence, that is a certificate of the kind referred to in section 178 of the Evidence Act 1995 (Cth);
(a) is admissible in any civil proceedings under this Act; and
(b) is evidence of the commission of the offence by the person to whom it relates.
56 The Commissioner submits that s 318 of the Proceeds Act goes further than s 178 of the Evidence Act in relation to the use that may be made of a certificate of conviction in proceedings brought under the Proceeds Act. The use of a certificate of conviction is not a matter to be determined by this advance ruling but a matter for trial.
57 Section 190 of the Evidence Act permits the waiver of certain rules of evidence by order of the court. That waiver may be ordered in one of two ways: with the parties consent, or under s 190(3). Section 190 relevantly provides:
(1) The Court may, if the parties consent, by order dispense with the application of any one or more of the provisions of-
(3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply to evidence if-
(a) the matter to which the evidence relates is not genuinely in dispute; or
(b) the application of those provisions would cause or involve unnecessary expense or delay.
58 Section 190(3) therefore confers a discretionary power to dispense with some rules of evidence including those contained in ss 91, 59 and 76. Subsection (4) provides a non-exhaustive list of matters to be taken into account when deciding to exercise this discretion. They are:
(a) the importance of the evidence in the proceeding; and
(b) the nature of the cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
59 The discretion in s 190(3) may be exercised at trial or in advance of trial as appropriate.
The cases dealing with the exercise of discretion in making an order pursuant to s 190(3)
60 Mr Kannan's oral submissions identified three cases outlined in Odgers Uniform Evidence Law (17th edition) upon which he relied.[35]
61 The first case is Attorney General NSW v Martin ('Martin'),[36] a case seeking admission of previous judgements and the findings contained in them in a later proceeding to have Mr Martin declared a vexatious litigant. The Attorney-General argued that s 91 of the Evidence Act had no application because in none of the earlier proceedings was there a fact in issue that Martin's claims were vexatious. If that argument was not accepted by the Court, the Attorney-General alternatively sought an order pursuant to s 190(3)(b) waiving the operation of s 91. Simpson J said the test excluding s 91 as formulated by the Attorney-General was too broad. She said:
Whether s 91 operates to exclude the use of any of the decisions and judgments will depend upon an analysis of three things - (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the Attorney General seeks to put those judgments - that is, what facts she seeks to prove by their use.[37]
62 Simpson J went on the assess each of the many proceedings upon which the Attorney-General relied. In each one she identified the facts in issue and the facts to be relied on from the judgment. Where these two things were aligned, her Honour concluded that s 91 applied and the judgments were not admissible.[38]
63 As to the alternative submission, that where s 91 does apply the documents should be admitted in the exercise of discretion, that argument was rejected by the Court in Martin:
The facts sought to be proved by the evidence (in those cases where I reject it) is fundamental to the issues to be determined. Section 192(2) must be considered. The considerations identified in paras (b), (c ) and (d) militate against the use of s 190(3)(b) for the purpose proposed.[39]
64 Ainsworth v Burden,[40] a defamation proceeding, illustrates the limited nature of s 91. At trial the judge had excluded evidence of prior judgments of the Licencing Court under s 91.[41] Those judgments showed that liquor licences were granted despite objection by the defendant and police. The NSW Court of Appeal said:
It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose - as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant's allegations were false - they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act. In any event the facts which the coversheets would have established were that a company associated with the plaintiff had made an application for a gaming licence, the police had objected to the grant of that licence, the terms of the grounds of objection, the rejection of the objections and the grant of the licence. None of those facts was a fact in issue in the Licencing Court proceeding and s 91 did not exclude the coversheets stating those facts.[42]
65 Finally, King v Muriniti ('Muriniti')[43] dealt with a subsequent proceeding seeking indemnification for costs by a solicitor for a party by reason of the solicitor's conduct, where the party ordered to pay costs was now bankrupt. The solicitor argued that s 91 precluded admission of the findings made by the Court in the substantive matters between the parties. The Court of Appeal concluded that s 91 was not engaged in proceedings where the Court is exercising a supervisory jurisdiction under s 99 of the Civil Procedure Act 2005 (NSW). It was also relevant that the bench constituted for the subsequent proceeding was identical to that hearing the earlier proceeding. Basten JA said:
Section 190(3)(b) raises a question as to the potential for more severe detriments than merely 'unnecessary expense or delay'. Thus, in the present case, if the respondent's argument were to be accepted, he would be entitled to reopen the whole of the proceedings recently determined by this court, with the possible consequence (and intent) that findings would be made which were inconsistent with those in the principal judgment. Indeed, that is not aptly described as a possibility; it must be the purpose of seeking to exclude from the evidence on the costs application the judgment already given. In other words, the result sought would tend to undermine the finality of an otherwise 'final' judgment and would thus constitute an abuse of process.[44]
68 The Commissioner submits that the need for an evidentiary ruling arises because the facts found in the Reasons go beyond the elements of the offence and would not be capable of admission by operation of s 92(2) of the Evidence Act nor s 318 of the Proceeds Act. It is also required because the respondents have not consented to a waiver of the rules under s 190(1).[46]
69 The Commissioner seeks an order that all fact finding is not inadmissible as evidence of the facts so found.[47] One reason for this broad approach is a real difficulty identifying the relevant facts because 'it's near impossible to be certain precisely what was in issue by the stage that the judge came to sentencing'.[48]
70 The Commissioner submits that, absent an advance ruling on the admissibility of the Reasons, the Commissioner will be required to put before the Court much if not all of the evidence from the criminal trial that goes to the ways in which, and the place at which, the respondents possessed and used Natarajan as a slave. The Commissioner says those matters will be relied on to show that the respondents cannot discharge their onus of proof on the balance of probabilities. The Commissioner further submits that it is neither just nor efficient that he, bearing no onus of proof in this application, be required to file all of his evidence in affidavit form prior to trial and then make an application for orders that would instead permit admission of some or all of the Reasons as proof of the facts found there.
71 In oral submissions Counsel for the Commissioner confirmed that the order sought by the advance ruling was not intended to make the Reasons positively admissible.[49] The trial judge would still be required to determine any argument if raised that the content of the Reasons, or so much of them as was sought to be admitted was otherwise relevant, and its probative value was not outweighed by its prejudicial effect. The application is not intended to affect the discretion at trial to exclude evidence or to determine admissibility generally. It is, as was submitted, confined to removing particular barriers of inadmissibility.
72 The Commissioner has gone some way to identify matters that he says are not or could not be genuinely in dispute. First he submits that the certificates of conviction include the date of the offences, which states the whole of the date range on the indictment, thereby proving the elements of both conviction offences over the whole of the period.[50] The Commissioner accepts that any argument over the scope of what may be proved by the admissible certificate of conviction is a matter for trial.[51] While the certificates did not identify who was the person offended against or the place where the offence took place, the Commissioner submits those matters are not likely to be genuinely in dispute and could be proved through the admission of the Reasons for Sentence.
74 Mr Kannan was self-represented. In his written and oral submissions he acknowledged that an advance ruling was appropriate.[54]
75 The parties agree that the threshold question raised by s 192A(1)(a) or (b), or both, is satisfied: that is, that there is a question about the admissibility of proposed evidence raised by the operation of s 91 and s 92 of the Evidence Act and s 318 of the Proceeds Act. That enlivens the discretion but does not compel an advance ruling.[55]
76 However, the respondents submit that a ruling should not be made until such time as the Commissioner identifies those particular facts in the Reasons that he may seek to admit and which are caught by s 91 (or ss 59 or 76). Only then, the respondents submit, can a court consider whether those facts cannot genuinely be in dispute, or that proving those facts by some means other than admission of the Reasons would cause or involve undue expense or delay. In effect they submit that a ruling not be made generally or in a blanket form regarding the documents but in respect of particular facts or findings.
77 Mrs Kannan submits that the Court will necessarily have to be satisfied of matters not genuinely in dispute or that being proved by other, admissible, evidence would cause or involve unnecessary expense or delay. She submits that the exercise of particularising the parts of the Reasons sought to be made admissible will itself be likely to have the effect of avoiding expense and delay.
78 She objects to the approach that considers the Reasons for Sentence and the Appeal Reasons each as a single piece of admissible evidence containing a number of findings of fact.[56] Mrs Kannan submits that the Commissioner must properly particularise the evidence sought to be subject to a waiver of the rules of evidence under s 190(3).
79 Mrs Kannan also rejects any criticism made of the exercise of her rights at the criminal trial. She submits that the criticism implicit in the submission by the Commissioner that the Reasons for Sentence have 'an unusually large number of findings of fact'[57] because of the absence of any concession by the respondents at trial constitutes an apportionment of blame by the Commissioner, and is irrelevant to the Commissioner's present application. Counsel for the Commissioner, appropriately, expressly disavowed any such criticism by the submission.
80 Mr Kannan submitted that there were some matters in the Reasons upon which the judge hearing the compensation application should make their own findings of fact. He pointed to this extract of the Reasons for Sentence as to why this was so:
There remains a significant body of evidence called in the prosecution case that remains in dispute. It will be necessary for the Court to make some necessary findings of fact about issues of significance to the sentencing calculus.[58]
81 Mr Kannan submits that some findings of 'fact' are too ambiguous and ought not be included in an advance ruling on admissibility. In particular Mr Kannan illustrates this by the extract from the Reasons for Sentence which states:
While it should be acknowledged that a condition of slavery is capable of existing on the basis of one of the powers of control being exercised, I am not satisfied to the required degree that before Mrs Natarajan came to Australia, you intentionally planned that any of the powers would be exercised over her to the point where one or more of such powers would satisfy the requirement for a condition of slavery to exist. Consistently with the verdicts of the jury, I am satisfied however that at some point during the period set out in the indictment a condition of slavery did exist. I am not able to say when that was, but I am of the opinion that the condition of slavery existed for a substantial period within the charged dates.[59]
82 Mr Kannan submits that this 'finding' is too ambiguous and therefore unhelpful in the present proceeding. I understood this submission to address the question of whether such a 'finding' amounted to a finding of fact as to the duration of a condition of slavery existing within the overall period on the indictment. This, he submits, illustrates that not all factual disputes relevant in the present proceeding were determined by facts found in the Reasons for Sentence. The consequence of this is that additional findings of fact may need to be made in the present proceeding that necessitate the Commissioner putting on evidence even if the Reasons are ruled not inadmissible. This is a reason for not ruling on the Reasons as a whole.
83 Similarly Mr Kannan submits that the Appeal Reasons described Mrs Natarajan's evidence as:
It cannot be doubted that, viewed literally, much of Ms Natarajan's evidence was inconsistent, and significant parts of it were improbable (if not wholly fanciful). In part, so much may be explained by language problems and difficulties with translation. As the prosecutor observed in his final address, the jury needed to understand the 'cultural differences', 'the subtlety of a well-educated cross-examiner', and Ms Natarajan's inability to pick up on the nuances of language being employed. Thus, for example, we would not interpret her evidence that Kumuthini Kandasamy 'broke [her] head' as a literal assertion that her skull was fractured. It is more likely that she was simply endeavouring to convey that her head had been injured in some fashion.
In our view, however, problems of language and interpretation cannot fully explain many of the unsatisfactory aspects of Ms Natarajan's evidence. Indeed, on a fair reading of her evidence, it is clear that there were occasions when Ms Natarajan prevaricated, dissembled and lied. Taking one example, it beggars belief that she was locked in the house, with the locks taped up, and the doors taped shut, so that she could not escape. Indeed, we consider that Gail Kelly's evidence exposed these claims as being deliberate untruths.[60]
84 Regarding the cost and expenses of putting the evidence from the trial before the Court again, Mr Kannan notes that the evidence of Mrs Natarajan was recorded and the Court could hear (and perhaps watch) relevant parts of that recorded evidence instead of admitting the Reasons.
85 Mr Kannan also submits that case management of the Commissioner's case is a matter for the Commissioner and not the Court. He submits that in any other case a respondent would be required to put on evidence and so an argument that the Commissioner should not be required to do so cannot be maintained.
86 The Commissioner opposes the submission that he should particularise those parts of the Reasons that would be subject to the orders on three bases. First he submits that particularisation of the paragraphs is not required by the Evidence Act when an order under s 190(3) is sought.[61] Second he contends that the argument implicit in the Kannans' submissions that they would suffer prejudice by a broad order that the three exclusionary provisions (ss 59, 76 and 91) do not apply to the Reasons has not been adequately articulated. He further submits that in any event, any prejudice could be addressed by a discretion exercised at trial. Finally, the Commissioner submits that, as the final hearing will be before a judge alone, there is unlikely to be prejudice because it is unlikely that a Judge of this Court would rely on evidence in a manner that was prejudicial to the respondents.[62]
87 First, s 91 is squarely raised because the Commissioner desires to tender the Reasons as evidence of the facts found by the judges at trial and on appeal and not for any other purpose. It is not the situation that if the Reasons remained inadmissible for that purpose, the Commissioner would be precluded from leading other evidence of those factual matters relied on. It is squarely an application, properly so in principle, as to the manner of presenting evidence, to avoid unnecessary expense and court resources. This is reflected in the in principle support of an advance ruling by all parties.
88 The circumstances of the Commissioner's advance ruling application are somewhat unusual insofar as timing is concerned. It was commenced on 14 June 2022. At that time, the Kannans had filed their evidence in support of their exclusion applications. The Commissioner filed Grounds of Opposition on 16 June 2022 but had not yet been required to file evidence in opposition. However, those exclusion applications have been withdrawn, leaving only the Kannans' compensation applications on foot. The Kannans have not yet filed any evidence in support of their compensation applications: the present orders require them to do so by 21 February 2024. What the respondents eventually file may be identical or similar to that previously filed, but that is not necessarily so. In some ways, this advance ruling application might be thought premature, given it is not presently known what evidence the Commissioner will need to respond to.
89 The nature of the advance ruling application is also somewhat unusual. As can be seen from the discussion of the cases above, s 91 of the Evidence Act and the exception in s 92 are generally considered in a disputed application to admit evidence. The application of s 91 is not a discretionary matter. Where admission is precluded by s 91, then a discretionary order may be sought pursuant to s 190(3)(b) of the Evidence Act that dispenses with s 91.[63]
90 This advance ruling application describes itself as stopping short of concerning itself with the admissibility of the Reasons, rather being concerned only with the dispensation of rules of evidence that make the content of the Reasons inadmissible. The application is framed as follows: the Commissioner asserts first that none of the findings in the Reasons are genuinely in dispute, and second, that proof of any of the matters therein would cause or involve unnecessary expense or delay. The application clearly involves consideration of an order under s 190(3), taking into account the matters in s 190(4). This approach seems to conflate the application of s 91 and the discretion to dispense with it as no order is sought under s 190(3).
91 I do not accept the submission that the Commissioner is not required to particularise the evidence it seeks to admit from the Reasons. First, the power to make an order under s 190 to waive the operation of s 91 may be made in relation to particular evidence or generally. Given the extent of the fact finding in the Reasons for Sentence, and any additional facts found in the Appeal Reasons, it is in my view appropriate that any waiver of the operation of s 91 be in respect of particular parts of the Reasons to which s 91 applies (or ss 59 or s 76 where appropriate) and not a general waiver of the inadmissibility of the Reasons.
92 In seeking a general waiver in these circumstances, it seems to me that the advance ruling application fractures discretionary questions of admissibility that may arise. The blanket approach does not resolve any question of what parts of the content of the Reasons are caught by s 91. It in effect seeks that I exercise discretion to waive the provisions of the Evidence Act without evaluation of the probative value of particular facts sought to be admitted in this way and their importance to the proceeding. For example, the discretion may be exercised in circumstances where it would permit the identity of Natarajan to be proved by the admission of the Reasons, a matter that is perhaps uncontroversially not in dispute. If so, the criteria for exercising the discretion in s 190(3)(a) would be met. If there is no consent between the parties, then it would be for the Commissioner to demonstrate that the discretion ought be exercised. However, facts found about conduct going to the duration during which her possession or use as a slave occurred might be a matter upon which there may be an element of genuine dispute. Given the observation of Champion J at paragraph 100 of the Reasons for Sentence (set out above at [81]), it would be difficult to exclude the possibility of a genuine dispute as to the duration of offending at this stage.
93 Were I to order that the probative value of the evidence was such that some or all of the Reasons were not inadmissible, they would become admissible unless another application was made later to exclude some part of the Reasons on some other ground. It is clear that since the introduction of s 192A, following the comments of Gaudron J,[64] that an advance ruling may consider all aspects of the discretion to include or exclude evidence. In my opinion a more efficient, just and expeditious approach is to await the Kannans evidence and the grounds of opposition and then for the Commissioner to identify those facts (that are or may be caught by s 91 or otherwise) on which he seeks to rely. At that time issues of admissibility under s 190(3) and any resistance to admissibility in that form on other grounds could be dealt with by an advance ruling as may be appropriate. Then the extent to which such disputed matters might be proved by other admissible evidence would be identified.
94 I accept Mrs Kannan's observation that the hearing of the advance ruling application to date has assisted in clarification of what issues may be in dispute and therefore, to some extent, what facts may efficiently be established by admission of the Reasons. There may well be controversy on a number of matters about which the Reasons contain opinion as to the state of the evidence rather than facts found. The central question then will be whether that controversy is fairly approached by permitting the admission of evidence of earlier judicial fact finding to establish those matters. It is important to recognise that the advance ruling application will not make the relevant evidence an agreed fact, nor would it preclude the disputation of any evidence by the Kannans at trial.
95 Finally, Mr Kannan's submission about the responsibility for case management is misconceived. The Court does have a responsibility to case manage litigation before it and s 192A is a tool in the armoury of the Court to manage the just, efficient, timely and cost effective conduct of litigation. Under the Supreme Court (Criminal Procedure) Rules 2017 (Vic) applicable to the conduct of this proceeding, evidence in chief on the hearing of applications shall be by affidavit, subject to the discretion of the Court to otherwise direct.[65] Although the Civil Procedure Act 2010 (Vic) is not applicable to civil proceedings under the Proceeds Act,[66] courts can and should consider case management factors as part of their discretionary decision making about the manner in which cases are conducted.[67] Case management principles include the objective of doing justice between the parties. It is important not to lose sight of the fact that in managing the conduct of the case, the Court is concerned with this objective. As was said by the majority in Aon Risk Services Australia Ltd v Australian National University:
In the past it has been left largely to the parties to prepare for trial and to seek the Court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of dispute serves the public as a whole, not merely the parties to the proceedings.[68]
96 In seeking a ruling on the question of whether certain matters may be proved in this case by reference to findings made by this Court in the prior criminal proceeding, the Commissioner is relying on provisions in the Evidence Act that may be utilised by any party, in all manner of proceedings, where appropriate. I reject the submission that by arguing inefficiencies and injustice the Commissioner is somehow deriving a benefit not available to other litigants in civil proceedings. The order sought will only be made if the Court considers it appropriate to do so, including that such an order will not result in an injustice between the parties.
97 The Commissioner has provided a marked up copy of each of the Reasons for Sentence and the Appeal Reasons, highlighting the paragraphs that go to the issues or matters in dispute. The Commissioner did not limit the application to the highlighted portions but, as I understood the submission, identified those portions that the Commissioner was likely to ultimately seek to have admitted and rely on.
98 The highlighted portions, said to be findings of fact, include many matters that are not. They include summary or statements of prosecution submissions,[69] argument and submissions of Counsel at trial.[70] Commencing at paragraph 15 the Reasons for Sentence address matters described as not in contention. They detail events occurring between 2002 and 2007 including protracted visa applications which may or may not contain fact finding relevant in the compensation applications. The Reasons also record concessions made by the Kannans during trial on some matters relevant to whether particular facts could be said to be not genuinely in dispute.
99 I repeat the caution exercised by Simpson J in Martin, in proving fundamental facts in issue by admission of prior reasons, at least where there is an element of genuine dispute of those particular facts.
100 I intend to adjourn the application and order that the Commissioner provide particulars of those facts contained in the Reasons, by reference to the relevant paragraphs, for which he seeks a waiver of ss 91, 76 and/or 59. Such particulars will not be required until such time as the respondents have filed their evidence in accordance with the existing timetable or as further varied and the Grounds of Opposition have been served. I will leave the timetabling of the further hearing of the application to directions in the Confiscation and Proceeds of Crime List on a date to be fixed.
[1] DPP (Cth) v Kannan & Anor [2021] VSC 439 ('Reasons for Sentence').
[2] Kannan and Kannan v The King [2023] VSCA 58 ('Appeal Reasons').
[4] Transcript of Proceedings, Commissioner of the AFP v Kannan (recs appointed) (Supreme Court of Victoria, S CI 2016 04862, Justice Forbes, 20 October 2023) 7.11-7.142 ('T').
[5] Supreme Court (Criminal Procedure) Rules 2017 (Vic) r 6.23.
[8] [2017] FCA 324 ('Re Whitebox Trading').
[9] Ibid [22] (Gleeson J) (citations partially omitted).
[10] Ibid [24] (Gleeson J) (citations partially omitted).
[14] Proceeds of Crime Act 2002 (Cth) s 317 ('Proceeds Act').
[15] Kumuthini Kannan, 'Outline of submissions on application for evidentiary ruling', Submissions in Commissioner of the Australian Federal Police v Kumuthini Kannan S CI 2016 04862, 25 September 2023, [3(b)] ('Kumuthini Kannan's Submissions'); Kandasamy Kannan, 'Submissions of the Second Respondent on the Commissioner's Amended Application for an Evidentiary Ruling', Submissions in Commissioner of the Australian Federal Police v Kumuthini Kannan S CI 2016 04862, 28 August 2023, [6] ('Kandasamy Kannan's Submissions').
[18] Commissioner of the Australian Federal Police v Hart [2018] HCA 1; (2018) 262 CLR 76 ('Hart').
[19] Ibid [10] (Kiefel CJ, Bell, Gageler and Edelman JJ) (citations omitted) (emphasis added).
[22] See T 20.17-21, consistent with the Grounds of Opposition that had been filed in the previous exclusion applications.
[25] Commissioner of the AFP, Amended Application for a Ruling under The Evidence Act 2008 (Vic), dated 20 October 2023 [4(a)] ('Application for Ruling').
[26] Application for Ruling [3]-[4].
[27] Hollington v Hewthorn [1943] 1 KB 587 ('Hollington').
[30] Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341, [9] ('Sukkar'); Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325, [9-10] ('Livanes'); Edwards v State Trustees Ltd (2016) 54 VR 1, [112-116] ('Edwards').
[35] Stephen Odgers SC, Uniform Evidence Law (Lawbook Co., 17th edition, 2022).
[36] [2015] NSWSC 1372 ('Martin').
[38] Ibid [38]-[39], [45], [50], [54], [61], [66], [74], [79], [85], [88], [95], [98], [102]-[103], [105]-[106], [112], and [119].
[40] [2005] NSWCA 174 ('Ainsworth').
[41] And in a later ruling the more limited tender of simply the coversheets of those judgments.
[42] Ainsworth (n 40) [109] (emphasis in original).
[46] Commissioner of the AFP, 'Affidavit of Cenalyne Cortez' sworn on 18 May 2022 in Commissioner of the AFP v Kannan S CI 2016 04862.
[49] T 8.27-9.5; Commissioner of the Australian Federal Police, 'Submissions of the Commissioner on his amended Application for an Evidentiary Ruling', Submissions in Commissioner of the Australian Federal Police v Kumuthini Kannan S CI 2016 04862, 31 July 2023, [24] ('Commissioner's Submissions').
[52] Kumuthini Kannan's Submissions [1].
[54] Kandasamy Kannan's Submissions [2]; T 4.14.
[55] Dailey v Director-General, Dept of Natural Resources [2013] NSWSC 515, [55].
[56] Kumuthini Kannan's Submissions [2] and T 4.5-7.
[57] Commissioner's Submissions [21].
[58] Reasons for Sentence (n 1) [36].
[60] Appeal Reasons (n 2) [70]-[71].
[61] Commissioner's Submissions [23].
[65] Supreme Court (Criminal Procedure) Rules 2017 (Vic) r 6.23.
[66] See Civil Procedure Act 2010 (Vic) s 4(2)(d).
[67] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, [97].
[68] Ibid [113] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[69] Such as the paragraphs highlighted at Reasons for Sentence (n 1) [48]-[49].
[70] Such as Reasons for Sentence (n 1) [68] and [88].
Commissioner of the Australian Federal Police
Kannan
(2002) 212 CLR 124
(2018) 262 CLR 76
(2016) 54 VR 1
(2018) 97 NSWLR 991
(2009) 239 CLR 175