ZAYDEN CEMINO	Plaintiff
v
JASON TIMOTHY CANNAN & Others (according to the attached Schedule)	Defendants
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	First Intervener
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	Second Intervener

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April, 1 May 2018
DATE OF JUDGMENT:	17 September 2018
CASE MAY BE CITED AS:	Cemino v Cannan
MEDIUM NEUTRAL CITATION:	[2018] VSC 535

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JUDICIAL REVIEW — Criminal offences — Aboriginal person — Application for transfer to Koori Court Division — Discretion — Relevant factors — Relevance of proper venue — Magistrates’ Court Act1989 ss 4D, 4E, 4F, 4G; Criminal Procedure Act 2009 ss 11, 31.

HUMAN RIGHTS — Charter of Human Rights and Responsibilities — Transfer application to Koori Court Division — Whether Magistrates’ Court a public authority — Judicial function – Right to equality before the law — Substantive equality — Enjoyment of cultural rights — Application of Charter to functions of Court — Interpretative function of Court under the Charter — Interpretation of Magistrates’ Court’s discretion — Charter of Human Rights and Responsibilities Act 2006 ss 1,4(1)(j), (2), 6(2)(b), 8(3), 19(2)(a), 32(1), 38.

MAGISTRTATES’ COURT — Aboriginal person — Criminal offences — Application to transfer proceedings to Koori Court Division — Discretion — Relevant considerations — Application of Charter of Human Rights and Responsibilities — Magistrates’ Court Act 1989 ss 4D, 4E, 4F, 4G.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E Nekvapil and Mr T Farhall	Victorian Aboriginal Legal Service
For the First to Eighth Defendants	Mr C Boyce QC with Ms J Davidson	Office of Public Prosecutions
For the First Intervener	Ms S Fitzgerald	Victorian Government Solicitor’s Office
For the Second Intervener	Ms K Evans	Solicitor for the Victorian Equal Opportunity and Human Rights Commission

SCHEDULE OF PARTIES

S CI 2017 02241

BETWEEN:

ZAYDEN CEMINO	Plaintiff
v
JASON TIMOTHY CANNAN	First Defendant
BREE LOUISE GEORGE	Second Defendant
ANTHONY GALE GALLAGHER	Third Defendant
PETER ALAN COLLIVER	Fourth Defendant
WAYNE LESLIE SPERLING	Fifth Defendant
STEPHEN PETER TAYLOR	Sixth Defendant
SIMON JOHN O’TOOLE	Seventh Defendant
IAN FORBES CARFOOT	Eighth Defendant
~~RUSSELL ADCOCK~~	~~Ninth Defendant~~
MAGISTRATES’ CORT OF VICTORIA	Tenth Defendant
ATTORNEY-GENERAL	First Intervener
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	Second Intervener

HIS HONOUR:

The plaintiff, Mr Zayden Cemino, seeks judicial review of a decision made on 12 April 2017 by the Magistrates’ Court of Victoria, sitting at Echuca, to refuse his application to transfer criminal proceedings commenced against him to the Koori Court Division of the Magistrates’ Court at Shepparton. There was no such Court Division at Echuca. I will refer to the Koori Court Division as the Koori Court.

The plaintiff challenges the Magistrate’s decision on two grounds: ground one is that the decision was affected by jurisdictional error and an error of law on the face of the record, which are traditional grounds of review; and ground…

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 Cemino v Cannan

Details

AGLC: Cemino v Cannan [2018] VSC 535
Case: [2018] VSC 535
Decision Date: 17 September 2018

CaseChat Overview and Summary

In the case of Cemino v Cannan, the applicant, a First Nations person, applied for the transfer of criminal proceedings from the Magistrates’ Court to the Koori Court Division. The application was brought before the Supreme Court of Victoria. The core dispute centred on whether the Magistrates’ Court exercised discretion in a manner that complied with the Charter of Human Rights and Responsibilities Act 2006, particularly concerning the applicant’s right to substantive equality and cultural rights.

The legal issues before the court encompassed whether the Magistrates’ Court was a public authority under the Charter and if its discretionary powers to transfer cases to the Koori Court Division were subject to the Charter. Additionally, the court needed to determine the relevance of the proper venue and the interpretative function of the Charter in the context of the Magistrates’ Court’s discretion. The applicant argued that the denial of transfer constituted a breach of their rights under the Charter, particularly the right to equality before the law and to enjoy their cultural rights.

The court examined the statutory framework provided by the Magistrates’ Court Act 1989 and the Criminal Procedure Act 2009, and considered the interpretative obligations under the Charter. It held that the Magistrates’ Court was indeed a public authority for the purposes of the Charter, and its discretionary powers were subject to the interpretative function of the Charter. The court found that the refusal to transfer the proceedings to the Koori Court Division was not in compliance with the Charter, as it failed to adequately consider the applicant’s right to substantive equality and cultural rights. Consequently, the court quashed the Magistrates’ Court’s decision and remitted the matter for reconsideration in accordance with the Charter.

The final orders of the court included quashing the Magistrates’ Court’s decision and remitting the matter back to the Magistrates’ Court for reconsideration in light of the Charter’s obligations. The court directed that the Magistrates’ Court must now take into account the applicant’s right to substantive equality and cultural rights in exercising its discretion regarding the transfer of proceedings to the Koori Court Division.

Orders