Omerdic v Angland - [2018] VSCA 320

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0059

IBRAHIM OMERDIC	Applicant
v
JESSICA ANGLAND	Respondent

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JUDGES:	HARGRAVE, T FORREST and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2018
DATE OF JUDGMENT:	4 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 320
JUDGMENT APPEALED FROM:	[2018] VSC 174 (Keogh J)

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APPEALS – Applicant convicted in Magistrates’ Court of one charge of solemnising a marriage where there was reason to believe that there was a legal impediment to the marriage – Conviction upheld on appeal to the Trial Division – Video recording of part of ceremony – Whether open to infer that ceremony completed – Whether evidence of form of ceremony sufficient for the purpose of a valid marriage – Whether open to infer that applicant intended to solemnise a marriage rather than conduct ‘Nikah’ or religious blessing – Relevance of non-compliance with formal requirements of the Marriage Act – Adequacy of reasons for decision – Marriage Act 1961 (Cth) ss 5A, 11, 42, 45, s 48(2)(a), 50, 100 – Criminal Code Act 1995 (Cth) s 5.2(1) – Criminal Procedure Act 2009 (Vic) s 272 – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr K McDonald	JK Lawyers & Co
For the Respondent	Ms W Abraham QC with Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

HARGRAVE JA
T FORREST JA
EMERTON JA:

Introduction

In September 2016, the applicant was the imam of the Bosnia and Herzegovina Islamic Centre in Noble Park, Victoria. He was authorised in his capacity as a religious marriage celebrant to solemnise marriages under the Marriage Act 1961 (Cth). Pursuant to s 45 of the Marriage Act, where a marriage is solemnised by an authorised celebrant who is a minister of religion, it may be solemnised according to any form of ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.

On 25 October 2016, the applicant was charged by the respondent with the indictable offence of causing a forced marriage contrary to s 270.7B(1) of the Criminal Code Act 1995 (Cth). On 7 April 2017, that charge was withdrawn and replaced with the summary charge of solemnising a marriage where there is reason to believe there is a legal impediment to that marriage, contrary to s 100(1) of the Marriage Act.

The allegations founding the charge were that on 29 September 2016, the applicant solemnised the marriage of a young female person (who shall be referred to as Ms C) and Mohammad Shakir, where there was reason to believe that there was a legal impediment to the marriage, namely, that Ms C was under 18 years of age and therefore not of marriageable age.

At the hearing in the Magistrates’ Court of Victoria, the applicant conceded that he knew that Ms C was not of marriageable age. However, he disputed the allegation that he had, as a matter…

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.

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Details

AGLC: Ibrahim Omerdic v Jessica Angland [2018] VSCA 320
Case: [2018] VSCA 320
Decision Date: 4 December 2018

CaseChat Overview and Summary

Omerdic v Angland involved the applicant, Omerdic, appealing his conviction in the Magistrates’ Court of solemnising a marriage without authority, under the Marriage Act 1961 (Cth). The conviction was upheld in the Trial Division of the Supreme Court of Victoria, and Omerdic sought leave to appeal to the Court of Appeal. The case hinged on whether there was sufficient evidence to conclude that Omerdic had completed the marriage ceremony and whether the evidence demonstrated that he intended to solemnise the marriage rather than conduct a 'Nikah' or religious blessing. The relevance of non-compliance with the formal requirements of the Marriage Act and the adequacy of the reasons provided in the decision were also central to the appeal.

The Court of Appeal considered whether the evidence, including a video recording of part of the ceremony, was sufficient to infer that Omerdic had completed the marriage ceremony. The court examined whether the evidence of the form of the ceremony was adequate for the purpose of a valid marriage under the Act. Additionally, the court needed to determine whether it was open to infer from the evidence that Omerdic intended to solemnise a marriage rather than conduct a religious blessing. The court also needed to consider the relevance of non-compliance with the formal requirements of the Marriage Act and whether the reasons provided for the decision were adequate.

In dismissing the appeal, the Court of Appeal found that there was sufficient evidence to infer that Omerdic had completed the marriage ceremony and intended to solemnise the marriage rather than conduct a religious blessing. The court held that the non-compliance with the formal requirements of the Marriage Act was relevant but did not invalidate the evidence. The court also found that the reasons provided for the decision were adequate. Consequently, the applicant's conviction was upheld, and the application for leave to appeal was refused.

Orders