Omerdic v Angland
[2018] VSCA 320
•4 December 2018
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 On 7 April 2017, that charge was withdrawn and replaced with the summary charge of solemnising a marriage where there is reason to believe there is a legal impediment to that marriage, contrary to s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 of fact, ‘solemnised a marriage’ or that he intended to ‘solemnise a marriage’. He claimed that he had conducted a religious blessing or ‘Nikah’ and not a marriage.
The Magistrate found the charge based on the solemnisation of a marriage of an underage person proven.
The applicant appealed the Magistrate’s order to the Supreme Court pursuant to s 272 of the Criminal Procedure Act 2009 on the grounds that it was not reasonably open to the Magistrate to find that:
(a) the ceremony was completed;
(b) the ceremony was in a form recognised as sufficient for marriage by the applicant’s religious body; or
(c) the applicant intended to perform a marriage when he conducted the ceremony.
On 13 April 2018, the trial judge dismissed the appeal and published reasons for his decision.[1] His Honour held that it was open to the Magistrate to find:
[1]Omerdic v Angland [2018] VSC 174 (‘Reasons’).
(a) the ceremony was completed;[2]
[2]Ibid [33].
(b) the ceremony was the solemnisation of a marriage for the purposes of s 45 of the Marriage Act;[3] and
[3]Ibid [42].
(c) the mental element of the charge was established.[4]
[4]Ibid [53].
The proposed grounds of appeal are as follows:
1. The learned trial judge erred by finding:
(a)the Magistrate was entitled to infer that the ceremony was completed;
(b)the ceremony was a marriage under Part IV of the Marriage Act 1961 (Cth).
2. The learned trial judge erred by:
(a)finding it was open to the Magistrate to infer that the Applicant intended to solemnise a marriage;
(b)failing to provide adequate reasons for so finding.
For the reasons set out below, the appeal has no real prospect of success and leave to appeal is refused.
Evidence before the Magistrate
In the Magistrates’ Court, the prosecution called only one witness, the informant. The applicant did not give evidence. Two character witnesses were called in his defence. A number of documents were tendered in evidence by the parties, along with an audiovisual recording of part of the ceremony and the record of interview conducted between Victoria Police and the applicant on 25 October 2016.
The documents tendered by the prosecution were seized from the Bosnia and Herzegovina Islamic Centre and included a document headed ‘Certificate of Islamic Marriage’ certifying that Mohammad Shakir and Ms C had been united in an Islamic marriage by the applicant (‘Islamic Marriage Certificate’). The Islamic Marriage Certificate was signed by the applicant, Ms C as ‘Bride’ and Mr Shakir as ‘Bridegroom’ and it bore the signature of two witnesses.
The Islamic Marriage Certificate contains the following disclaimer:
This Certificate is not evidence of nor has it the effect of creating a legal marriage under the Marriage Act 1961 (Cth) and should the parties wish to have their marriage recognised at law the same will need to be registered as per section 80 of the Marriage Act 1961 - The couple must file for a legal marriage as required and pursuant to the Marriage Act 1961 (Cth). Please note that the Board of Imams do not offer any opinion or make any representation as to the enforceability or compliance with the Australian Legal System concerning this document. You should seek legal advice.
The documents seized from the applicant’s office also included a script for a ceremony setting out a ‘Question to Bridegroom’, a ‘Question to Bride’, and the wording for the ‘Offering by Groom’ and ‘Acceptance of the Bride’, along with a single sheet headed and describing the ‘Duties and Rights of a Wife’ and another sheet explaining the nature of marriage.
The audiovisual recording of the ceremony was apparently extracted from a mobile phone belonging to Mr Shakir. It appears to be either an accidental or a covert recording, as it is of very poor quality. The shifts in camera angles are dizzying and the audio is difficult to follow, especially as a number of the participants are speaking in a language identified by a Burmese interpreter as being a Rohingya dialect. The transcript of the recording is correspondingly patchy, the interpreter being conversant in Burmese but not in the dialect spoken by some of those present.
The audiovisual recording shows a number of people in the applicant’s office, including the applicant (who is robed), and records them participating in part of a ceremony that the Magistrate found involved the solemnisation of a marriage between Ms C and Mr Shakir.
According to the trial judge, whose summary of the facts is not disputed, the ceremony was attended by Mr Shakir, Ms C, her mother, and two male witnesses, Abdul Shaquel and Noor Allah. At the beginning of the recording, the applicant asks Mr Shakir whether he has ‘anything for her’, and confirms a gift of gold to the value of $1,480. The applicant then refers to a certificate, which the parties appear to be engaged in completing. The applicant states that he will not give the certificate or a copy of it to the parties: ‘because she’s very young I can’t give you certificate,’ and ‘because of my security’. The applicant says that if ‘they’ need the certificate later when Ms C is 18 he will give it to her.
The audiovisual recording records the applicant reading aloud the script referred to above about the nature of marriage and the duties and rights of a wife, and then asking and receiving answers to the ‘Question to Bridegroom’ and the ‘Question to Bride’. However, the recording ceases abruptly after the applicant recites the ‘Offering by Groom’ and suggests to Mr Shakir that he might repeat it in his own language.
The record of interview is divided into three parts: answers given by the applicant when he was unaware that the informant had obtained the Certificate of Islamic Marriage and an audiovisual recording of the ceremony; answers given after the applicant became aware that the informant had obtained the Certificate of Islamic Marriage but not the audiovisual recording; and answers given once the applicant had been shown the audiovisual recording.
The applicant does not challenge the recitation of the evidence by the trial judge. The trial judge summarised the relevant parts of the record of interview as follows:
Mr Omerdic’s first version of the ceremony
Mr Omerdic was interviewed by police on 25 October 2016. Early in the interview Mr Omerdic was asked about his involvement with the alleged marriage of Mr Shakir and Ms C, which occurred on 29 September 2016. Mr Omerdic said a group, which included Mr Shakir and Ms C, came into his office and Mr Shakir said ‘Ok, this girl, like, I love her, so I like to be with her.’ Mr Omerdic said he ‘made a prayer to love each other, God to save them, to help them, to secure them’. He said they did not mention marriage. Mr Omerdic described the prayer he made a number of times. He said it was a traditional prayer for wellbeing, which he did every day for people for different reasons, giving as examples, to ask for success, or if the person is emotional or stressed, or as a prayer for himself or his children. Mr Omderdic said a number of times that marriage was not mentioned.
Requirements of marriage
Mr Omerdic said to make a marriage official parties were required to give a celebrant a notice of intended marriage form a minimum of one month to a maximum of 18 months before the marriage:
If less, they have to wait, or just give them prayer and ask them question — give them marriage through Sharia law but not been recognised to government. When they enough time — so they come together to sign the papers because not — not legally to sign papers before one month.
Mr Omerdic was asked about marriage recognised by Sharia law:
QO.K. And you said that there’s marriage recognised by Sharia law?
AWhat — when they — when they come to me, I give them marry the same — if registered or not registered, the same procedure.
Q O.K.
ABut if they going to be registered, they are to sign all papers … got six signatures each and three signatures of witnesses, so I send to head office and after calendar month they take certificate from head office and on that day I give certificate from — marriage celebrant give certificate on that day.
Q And what certificate is that? What’s that called?
A Certificate of marriage.
Q Certificate of marriage. Is that the Islam marriage?
A No.
Mr Omerdic confirmed the ceremony was the same whether or not the parties wished to register the marriage. He referred to an Imams Board Marriage certificate as proof parties are married. He said it was not a certificate required by Australian law, but was still official in the view of Islam. Mr Omerdic said parties to an Imams Board certificate were required to show identification, and he would ask for identification such as passports, birth certificates or drivers licence to see the age of the parties. He said he would never let people sign an Imams Board certificate or marry them without identification because it was not lawful. Mr Omerdic said Mr Shakir and Ms C did not provide identification and he did not ask for identification because they did not mention marriage. Mr Omerdic said he did not record anything in relation to the prayer he said for Mr Shakir and Ms C.
Certificates of marriage
Mr Omerdic was asked about the difference between the two marriage certificates:
QWhat — what’s the difference between the two marriage certificates? Like, the one that’s registered — like, why would you need the Imams Board certificate?
A They don’t like to register in head office.
Q Why would they not want to register?
AI don’t know. I ask before, ‘You like to be registered or just nikah?’ ‘Nikah’ means marriage that Sharia asks to be witnesses there, groom and bride, physical attending there, no telephone conversation, to be there physical, and to be dowry agreement between them. They going to look after each other and — or answer my question and then they make prayer, and they know what is this, marriage. Is not only relationship, not only relationship, not only engagement, it’s marriage. Mean them lawful to have for intimacy. So that is this, to show to others but not necessarily … this is not a must. This is only if they ask to show to community.
QIf you read out the responsibilities for the groom and the bride and you get signatures from witnesses and from the bridge [sic] and groom, are they married?
AIf they give signatures and they ask — they answered all my questions ‘yes’ and they gave each other gift and dowry — the groom give the bridge [sic] dowry, so that’s agreement between them.
Q O.K., all right.
A This may make them lawful for intimacy.
The Certificate
Mr Omerdic was then shown the Certificate between Mr Shakir and Ms C, which he confirmed was a certificate given by the Imams Board. Mr Omerdic agreed that he had said he recognised a Board of Imams certificate as marriage, but said because Ms C was under 18 he did not recognise Mr Shakir and Ms C as married. Mr Omerdic was asked whether he read out the responsibilities of the bride and bridegroom to Mr Shakir and Ms C. He initially said no, but later said he could not remember. Mr Omerdic was asked:
QSo if you’re doing one of these marriages that you don’t think is a marriage — you don’t recognise as a marriage because they’re under-age, do you normally read out the responsibilities?
ANo, because not — I not consider them they are husband and wife.
Q O.K.
AThey come for me for prayer but I can’t — I can’t stop them to go for intimacy. I can’t stop them.
Mr Omerdic said he did not give Ms C and Mr Shakir a copy of the Certificate because he did not recognise them as husband and wife.
Video recording of ceremony
Mr Omerdic was then shown the video recording of the ceremony. He said what was shown was his usual procedure, and was the text of marriage, adding that he had no other text for relationships or friendships. Mr Omerdic was asked:
QIf someone came in to be married and you did the Imam certificate of marriage and they were — gave you identification and they had witnesses and you read that same information, would they be married?
A If — if I saw her ID I would …
QO.K. So the difference between being recognised as married and not recognised as married is the ID has to be shown to you?
A Yeah.
Q O.K. Is there any other difference?
A No.
QO.K. Because there — there doesn’t seem to be any other difference. The same information is read, the dowry is given — — —
A Everything is the same — the same.
Q — — — the witnesses were there.
A On that day I didn’t ask for any IDs — — —
Q Yeah.
A— — — because they didn’t — they look like girl is a girl so not — not marriageable age.
Q Yeah.
ASo I didn’t ask — I didn’t think — feel that is something serious.
QWell, I put it to you that with everything that we’ve spoken about, the witnesses, the signatures, the reading of the responsibilities, the exchanging of dowry — — —
A Yes, yeah.
Q — — — that it was a marriage.
A Yeah, looked like it.[5]
[5]Reasons [11]–[15].
In addition, the applicant was asked:
QAnd that they left on the 29th of September – whatever time it was that they left , believing that they were husband and wife.
A Mm.
Q What do you say to that?
AI think so that it is, but in my mind … they didn’t ask me to be registered so I didn’t ask their IDs because be obviously over – over – over age of marriage and she been over 17, so for recognition to be - as husband and wife, I have to ask many documentation, as I repeat again. For – for that, that’s enough for them for prayer, so God protect them not to go to sin. So that’s what Islam – Islam ask this – ask this – give them prayer to ask me question to give them very short advice – advice. Through Islam point of view they can married. 16 and over they can married.
The answers given by the applicant in the record of interview were relied upon by the prosecution for evidence as to what occurred at the ceremony, whether the ceremony was consistent with a ceremony to solemnise a marriage under Islamic law and what the applicant’s intentions were when he conducted the ceremony.
Statutory framework
Section 5 of the Marriage Act defines ‘marriage’ as the union of two people to the exclusion of all others, voluntarily entered into for life.
23 Part IV of the Marriage Act deals with the solemnisation of marriages in Australia.
24 Section 32 provides:
A minister of religion who is registered under this Subdivision in any register may solemnise marriages at any place in Australia.
It was not in dispute that the applicant was on the register of ministers of religion kept for the purposes of the Marriage Act, and was an authorised celebrant as defined by that Act. He was entitled to solemnise marriages under the Marriage Act and had been doing so for nearly 30 years.
As discussed, the form of ceremony required for the solemnisation of a marriage is governed by s 45 of the Marriage Act. Section 45(1) provides:
Where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.
Accordingly, the applicant solemnised the marriage of Ms C and Mr Shakir for the purposes of the Marriage Act if the ceremony that the applicant conducted was in the form recognised as sufficient for the purpose of solemnising a marriage by the applicant’s religious body.
The Marriage Act contains a number of formal requirements that were not observed in this instance. For example, s 42 of the Marriage Act provides that a marriage shall not be solemnised unless Notice of Intended Marriage (in the prescribed form) is given no later than one month before the date of the marriage. The Notice must contain certain particulars in relation to the parties (including birth dates), and a declaration as to certain matters must be given. However, s 48(2)(a) provides that a marriage is not invalid by reason of failure to give the Notice or declaration required by s 42.
Section 50 of the Marriage Act provides that where an authorised celebrant solemnises a marriage, he or she must prepare marriage certificates in the prescribed form (‘Certificates’), to be handed to one of the parties[6] and to be forwarded to the appropriate registering authority. Certificates prepared and signed in accordance with s 50 are conclusive evidence that the marriage was solemnised in accordance with s 45 of the Marriage Act.
[6]On behalf of both of them: Marriage Act s 50(4).
The applicant did not prepare Certificates in accordance with s 50 for Ms C and Mr Shakir. However, the provision invalidating marriages solemnised otherwise than in accordance with Part IV applies only to non-compliance with provisions preceding s 48.
It is an offence to solemnise a marriage where the celebrant believes there may be a legal impediment to the marriage. Section 100 of the Marriage Act provides:
A person shall not solemnise a marriage, or purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.
Section 11 of the Marriage Act provides that, subject to an exception in s 12 that is not presently relevant, a person is not of marriageable age until the person has attained the age of 18 years.
33 Section 5A of the Marriage Act provides that Chapter 2 of the Criminal Code applies to all offences against the Act. The Criminal Code provides that a person ‘has intention with respect to conduct if he or she means to engage in that conduct’.[7]
Ground 1(a)
[7]Criminal Code Act 1995 (Cth) s 5.2(1).
The applicant submits that the trial judge erred in holding that the Magistrate was entitled to find that the ceremony was completed. The Magistrate’s finding that the ceremony was completed was an inference based on circumstantial evidence, but it was not the only rational inference that could be drawn from the facts. According to the applicant, there was a rational explanation for what occurred that was consistent with the applicant’s innocence, which was that the ceremony was not completed.
The applicant points to the fact that the audiovisual recording did not depict a completed ceremony and that there were obvious communication difficulties between the applicant and Mr Shakir that might have led to the abandonment of the ceremony. The fact that a ceremony commenced and, when the recording stopped, impediments to the conduct of the ceremony had arisen, gave rise to a rational inference that the ceremony was not completed. Furthermore, so it is contended, the prosecution failed to call, with no satisfactory explanation, relevant eyewitnesses to the ceremony who could have provided direct evidence about its completion.
The trial judge held that the Magistrate’s finding that the ceremony was completed was a rational inference from the evidence before him. The trial judge observed that for any competing inference to be rational or reasonable it must follow from established facts and not rest on conjecture or speculation.[8] In this regard, his Honour said:
The only evidence which might be thought to support the alternative hypothesis was the language difficulty Mr Omerdic was experiencing with Mr Shakir, in particular having him repeat the offering by groom, and equivocation or hesitation to offer on the part of Mr Shakir. However, the language difficulties did not prevent the ceremony progressing to the point the video recording ceased. Mr Omerdic said during the record of interview, after viewing the video, that what occurred was his usual procedure, was the text of marriage, and looked like a marriage. Mr Omerdic said Mr Shakir and Ms C left understanding they had been married. Magistrate Goldberg was entitled to find that language difficulties and hesitation by Mr Shakir were not an impediment to and did not prevent completion of the ceremony.[9]
[8]Reasons [29] citing R v Baden-Clay (2016) 334 ALR 234 [47].
[9]Reasons [30] (emphasis in original).
We see no error in this analysis. In light of the evidence to which the trial judge referred, the inference that the ceremony came to an abrupt end before it could be completed was not reasonably open. In the context of the evidence as a whole, the abrupt cessation of the audiovisual recording does not give rise to a reasonable inference that the ceremony remained incomplete, even when considered in conjunction with the language difficulties experienced by the groom. The language difficulties were present at the outset, yet the ceremony went ahead. It was well advanced when the recording ceased. Furthermore, the applicant told the informant that when they left the ceremony, Ms C and Mr Shakir believed themselves to be married. He did not suggest that the ceremony had been aborted.
Indeed, the applicant’s answers to questions in the record of interview show that he considered whatever type of ceremony he admitted to having conducted to have been conducted in full. It is plain that the applicant understood himself to have completed whatever he was asked and/or undertook to do.
In the circumstances, it was well open for the Magistrate to be satisfied to the requisite standard that the ceremony had been completed.
In the Magistrates’ Court, Senior Counsel for the applicant referred to the fact that there was a ‘Jones v Dunkel[10] clear argument’ arising from the fact that the prosecution did not call as witnesses any of the other persons present at the ceremony. He said:
There is no evidence on the recording of the conclusion [of the ceremony]. Indeed, it’s to the contrary. It’s – there’s problems getting to that point. He won’t say the words. There’s language problems. There’s confusion. And there’s urging from the mother, and they can’t get there. Second, those witnesses that could have been called have not been called. So this is a Jones v Dunkel clear argument, that there’s no explanation as to why the girl, the male, the mother and the two witnesses have not been called. There’s some evidence about the two witnesses; that is, they can’t be – they haven’t been found or no efforts have been made.
[10](1959) 101 CLR 298.
In written submissions filed in this application, the applicant contended that the prosecution’s failure to call eyewitnesses to the ceremony who could have given direct evidence about its completion was ‘inconsistent with the assertion of a completed ceremony’. In oral submissions, counsel submitted that where as a matter of logic the prosecution had to prove that a ceremony concluded, the objective evidence in the video did not determine this question and there were people who could speak to the point directly, it was incumbent on the prosecution to call those witnesses.
This argument supposes that the evidence available to the Magistrate was not, without more, capable of proving beyond reasonable doubt that the ceremony was completed. For the reasons given, this premise is not valid. The applicant told the informant what occurred at the ceremony. It was not permissible for the Magistrate to speculate about what others might have said about the ceremony and, in the circumstances, an inference that the evidence that could have been given by persons present at the ceremony would not have assisted the prosecution case leads nowhere. Further, there is no evidence, as opposed to speculation, from which a competing inference — that the ceremony was not completed — can be drawn. It was well open to the Magistrate not to draw any inference from the decision by the prosecution not to call as witnesses any of the persons present at the ceremony.
Ground 1(a) has no real prospect of success.
Ground 1(b)
The applicant submits that the trial judge should have held that the Magistrate erred in holding that the ceremony carried out by the applicant was a marriage under Part IV of the Marriage Act. Aside from the answers that were provided by the applicant in his record of interview, there was no evidence about the form of ceremony that the applicant’s religious body recognised for the purpose of a valid marriage in accordance with s 45 of the Marriage Act. Indeed, so the applicant contends, his answers in the record of interview demonstrated a clear distinction between marriage recognised under Australian law and marriage recognised under Islamic law.
In respect of the form and status of the ceremony, the trial judge said:
By the time Mr Omerdic performed the ceremony, he had been practising as an Imam and authorised marriage celebrant for almost 30 years, and in that role had been solemnising marriages. It was open to Magistrate Goldberg to conclude that Mr Omerdic was aware that an Islamic marriage solemnised by him was recognised as marriage pursuant to Australian law. To perform a marriage ceremony Mr Omerdic used a text, which he identified as the text for marriage. He said the text was provided to him by the Imams Board. The text and ceremony were recorded in documents found in the folder in Mr Omerdic’s office. The ceremony recorded by video was consistent with the text provided by the Imams Board and included completion of the certificate. Mr Omerdic said that the Certificate was official and was proof of an Islamic marriage. Having viewed the video, Mr Omerdic identified as the only difference between the ceremony conducted between the parties and an Islamic marriage that he had not seen Ms C’s ID, adding that he did not ask for IDs because Ms C did not appear to him to be of marriageable age.[11]
[11]Reasons [40].
Having reviewed the applicant’s answers in the record of interview, the trial judge continued:
In my view no confusion was created by Mr Omerdic’s answers. He was clear about the requirements for Islamic marriage. He said the same ceremony was used by him for marriage irrespective of whether the parties wished to have the marriage registered. The distinction which he sought to draw between Islamic marriage and Australian marriage was the need for the notice of intended marriage form and the process of registration to make a marriage official. However, the notice and registration are not requirements for solemnisation of a marriage under the Act.[12]
[12]Ibid [41].
We agree. The trial judge gave an accurate description of the evidence and the law. True, there was no expert evidence as to what constitutes the solemnisation of a marriage under Islamic law. But the Certificate of Islamic Marriage, the audiovisual recording of the applicant reading from the script for an Islamic marriage, and the applicant’s acknowledgement in the record of interview that the ceremony he conducted for the Nikah was no different from the ceremony he would conduct for the solemnisation of a marriage, was evidence from which the Magistrate could conclude that the ceremony conducted by the applicant was one recognised as sufficient to solemnise a marriage by the applicant’s religious body or organisation.
Ground 1(b) has no real prospect of success.
Ground 2(a)
The applicant submits that the trial judge erred by finding that it was open to the Magistrate to infer that the applicant intended to solemnise a marriage.
According to the applicant, there were a number facts or circumstances that were inconsistent with the prosecution case that he intended to solemnise a marriage under the Marriage Act. In written submissions filed on his behalf, the following matters were identified:
(d) In his record of interview, the applicant –
(i) demonstrated an awareness of the requirements under the Marriage Act and maintained that he did not intend to perform a marriage under the Marriage Act;
(ii) said he conducted a Nikah, a religious blessing authorised under Sharia law by the Board of Imams Victoria. A Nikah does not involve any forms other than a Certificate of Islamic Marriage;
(iii) identified differences between a marriage valid under Australian law and a Nikah, noting different ways that marriages are recognised, that an official marriage requires a Notice of Intended Marriage, that Sharia law has similar procedures to an official marriage, but there are different processes;
(iv) stated that the ceremony that he conducted merely made it lawful for intimacy to take place; and
(v) distinguished Australian marriage from Nikah;
(e) No certificate of marriage was prepared or even contemplated, in contrast to occasions when the applicant had prepared Certificates (pursuant to s 50 of the Marriage Act) for marriages under Australian law;
(f) The Certificate of Islamic Marriage expressly disavowed creating a legal marriage under the Marriage Act and contained no space to record the date of birth of the parties;
(g) The contract of Islamic marriage is given to the parties to complete at a later stage, and was for them only and not for official marriage purposes;
(h) There was no Notice of Intended Marriage;
(i) There was no proof of official date and place of birth;
(j) There was no declaration about the belief of absence of legal impediment to marry;
(k) The applicant did not provide the parties with a document outlining the obligations and consequences of marriage;
(l) The applicant complied with all of the above requirements on those occasions he did solemnise a marriage under Australian law; and
(m) The applicant was a person of good character, which may have made it more likely his evidence was credible and less likely he committed the offence charged.
The trial judge observed that the Magistrate’s finding of guilt necessarily involved a finding by inference that when the applicant performed the ceremony he intended to solemnise a marriage between Ms C and Mr Shakir in accordance with s 45(1) of the Marriage Act. His Honour identified a number of facts from which the inference that the applicant intended to solemnise a marriage could be drawn. The Magistrate found that the ceremony was completed and that it was sufficient in form for the solemnisation of marriage pursuant to s 45(1). The applicant had been an imam and an authorised celebrant since 1987. It was part of his role to perform marriages and he did so regularly. He was aware of the form of ceremony recognised by his religious body as sufficient for marriage. In his record of interview he said that what was seen on the video was his usual procedure, what he said was the text for a marriage ceremony and what occurred looked like marriage. The trial judge concluded, on this basis, that it was obviously open for the Magistrate to infer that when the applicant performed the ceremony, he intended to solemnise a marriage.
The trial judge also referred to the fact that during his police interview, the applicant stated that he did not consider Ms C and Mr Shakir to be married and that he had not intended to marry them. The trial judge acknowledged that this was evidence from which an inference consistent with innocence might have been drawn, but found that there were reasons why the Magistrate might have disbelieved the applicant and held that it was open for him to do so. There were inconsistencies between the applicant’s statements early in the record of interview that marriage was not mentioned and that he performed a prayer for wellbeing only, and the position he adopted after he was confronted with the evidence of the Certificate of Islamic Marriage and the audiovisual recording of the ceremony. The trial judge continued:
Mr Omerdic relied on answers he gave during the record of interview which he submitted demonstrated his understanding of the formal requirements for marriage under the Act, which were not completed, and the distinction in his mind between an Australian marriage and Nikah, or Islamic marriage. Mr Omerdic submitted an inference consistent with innocence followed from this evidence. Magistrate Goldberg was entitled to disbelieve Mr Omerdic. It is apparent from the following reasons that he did so:
His (Mr Omerdic’s) differentiation between a marriage (under the Act) and Islamic arrangement is convenient but nothing more. He knew and understood that a marriage in accordance with Islamic tradition was sufficient for the purpose of the Marriage Act.
There was then no evidentiary foundation for the inference consistent with innocence.[13]
[13]Reasons [52].
As to the evidence of the applicant’s good character, the trial judge held that it remained open to the Magistrate, weighing all of the evidence, including the evidence as to good character, to conclude that the mental element of the charge was established and find the charge proved.
Again, we see no error in his Honour’s reasoning. Non-compliance with the formal requirements of the Marriage Act does not affect the solemnisation of a marriage under Part IV. A celebrant can intend to solemnise a marriage while having no intention whatsoever of complying with the Marriage Act notice or certification requirements. Moreover, the applicant’s attempt to draw a distinction between an ‘Australian marriage’ and a Nikah is spurious in circumstances where he told the informant that the ceremony for a marriage and the ceremony for a Nikah are the same, except that he does not require ID for the latter. Based on what he told the informant, it is plain that the applicant intended to perform a ceremony using the text used for the solemnisation of marriages under Islamic law. In other words, he intended to conduct a ceremony that qualified as the solemnisation of a marriage under s 45(1) of the Marriage Act.
Ground 2(a) has no real prospect of success.
Ground 2(b)
The applicant submits that the reasons were inadequate as the trial judge, in his analysis of the applicant’s arguments, gave insufficient or no consideration to the non-compliance with the many formal requirements of the Marriage Act and the disclaimer on the Certificate of Islamic Marriage.
This ground ignores the fact that the impugned conduct is the solemnisation of a marriage between Ms C and Mr Shakir. None of the formal requirements referred to touch upon whether the marriage was solemnised in accordance with Islamic law or tradition sufficient for the purposes of s 45(1) of the Marriage Act.
The disclaimer on the Islamic Marriage Certificate, while couched in pseudo-legal language, is confused. Among other things, it refers to the wrong section of the Marriage Act. It states, in substance, that the preparation and issuing of an Islamic marriage certificate alone may not result in the legal recognition of the marriage. A different form of certificate may be required to register the marriage with the relevant registering authority. However, registration of a marriage is distinct from the solemnisation of a marriage. The disclaimer does nothing to negate the solemnisation of the marriage in accordance with the requirements of the Islamic faith. So far as the applicant was concerned, the Certificate of Islamic Marriage could be used by Ms C and Mr Shakir to prove to other Muslims that they were a married couple. They were a married couple in the eyes of the Muslim community.
There is no substance to this proposed ground of appeal. The charge that was proven against the applicant concerned the solemnisation of a marriage. For the reasons given, for that to occur it was unnecessary for there to have been compliance with the formal requirements of the Marriage Act. The trial judge did not err in limiting his consideration of compliance with these requirements.
Ground 2(b) has no real prospect of success.
Conclusion
None of the proposed grounds of appeal has any reasonable prospects of success. Leave to appeal must be refused.
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