Omerdic v Angland
[2018] VSC 174
•13 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 02693
BETWEEN:
| IBRAHIM OMERDIC | Appellant |
| and | |
| JESSICA ANGLAND | Respondent |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2017 |
DATE OF JUDGMENT: | 13 April 2018 |
CASE MAY BE CITED AS: | Omerdic v Angland |
MEDIUM NEUTRAL CITATION: | [2018] VSC 174 |
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JUDICIAL REVIEW AND APPEALS – Appeal from Magistrates’ Court on questions of law – Finding the Appellant solemnised a marriage he had reason to believe would be void – s 100 of the Marriage Act 1961 (Cth) (the Act) – Was the religious ceremony performed by the Appellant completed – Was the ceremony solemnised according to a form and ceremony recognised as sufficient for marriage by the Appellant’s religious body – Section 45(1) of the Act – Did the Appellant intend to solemnise a marriage pursuant to the Act – Circumstantial case – Were there inferences consistent with innocence – Knight v R (1992) 175 CLR 495 – Jones v Dunkel (1959) 101 CLR 298.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Gurvich QC with Ms A Ellis | JK Lawyers & Co |
| For the Respondent | Ms W Abraham QC with Ms K Breckweg |
HIS HONOUR:
In September 2016 Mr Ibrahim Omerdic, in his capacity as Imam of the Bosnia and Hercegovina Islamic Centre in Noble Park (the centre), performed a ceremony between Mr Mohammad Shakir and a female person I will call Ms C in these reasons (the ceremony).
Mr Omerdic was authorised to perform marriages under the Marriage Act 1961 (Cth) (the Act). He was aware when he performed the ceremony that Ms C was not of marriageable age, and any marriage to which she was a party would be void.
In June 2017, Magistrate Goldberg found that by performing the ceremony Mr Omerdic solemnised a marriage which he had reason to believe would be void and convicted Mr Omerdic of an offence under s 100 of the Act. Mr Omerdic appeals that conviction on grounds that it was not reasonably open to Magistrate Goldberg to find:
(a) The ceremony was:
(i) completed; or
(ii) in a form recognised as sufficient for marriage by Mr Omerdic’s religious body.
(b) Mr Omerdic intended to perform a marriage when he conducted the ceremony.
Background
Mr Omerdic studied for a total of 10 years to become an Imam. It was part of his role as Imam at the centre to marry people. During the police record of interview, which was in evidence before Magistrate Goldberg, Mr Omerdic said that from 1987 he was a registered marriage celebrant.
A document found by police in a folder in Mr Omerdic’s office appears to set out a form of ceremony. The document is reproduced:
Question to bridegroom
__________________WILL YOU TAKE _________________TO BE YOUR WIFE TO LIVE TOGETHER ACCORDING BY ISLAMIC LAW.
Question to bride
__________________WILL YOU TAKE _________________TO BE YOUR HUSBAND TO LIVE TOGETHER ACCORDING BY ISLAMIC LAW.
Offering by groom
I OFFER YOU MYSELF IN MARRIAGE IN ACCORANCE WITH THE GUIDANCE AND THE TEACHINGS OF THE HOLY QUR’AN AND THE HOLY PROPHET MUHAMMED (A.S).
Acceptance by the bride
I ACCEPT YOUR OFFER OF MARRIAGE IN ACCORDANCE WITH THE TEACHINGS AND GUIDENCE [sic] OF THE HOLY QURAN.
–MAHR–DOWER
–GIVING THE GIFT TO EACH OTHER
–SIGNATURES
–DOA’
In the same folder two other documents were found, which appear to record prayers. They are headed respectively:
DEAR GROOM, BRIDE, BROTHERS, SISTERS, LADIES AND GENTLEMEN
and
DUTIES AND RIGHTS OF A WIFE
The ceremony was performed by Mr Omerdic on 29 September 2016 and was attended by Mr Shakir, Ms C, her mother, and two male witnesses, Abdul Shaquel and Noor Allah. Part of the ceremony was video recorded on a mobile phone. That recording and a transcript were in evidence before Magistrate Goldberg. Early in the transcript Mr Omerdic asked Mr Shakir whether he had ‘anything for her’, and confirmed a gift of gold to the value of $1,480. Mr Omerdic referred to a certificate, which it is apparent was being completed during the ceremony. Mr Omerdic stated that he would not give the certificate or a copy to them ‘… because she’s very young I can’t give you certificate,’ and, he said, ‘because of my security’ he could not give Ms C the certificate, but if she needed it later when she was 18 years he would give it to her. Mr Omerdic referred to signature of the bride and directed Ms C where to sign, then directed Mr Shakir where to sign.
Mr Omerdic then recited a prayer which commenced:
Brother Mohammad Shakir, [Ms C], witnesses, marriage in Islam is not only a means of enjoyment.
Mr Omerdic continued, referring to the commitment of marriage, to Mr Shakir as a husband, and Ms C as a wife, described the duties and roles of each as husband and wife, and said that they will live together as husband and wife.
Mr Omerdic continued:
MR OMERDIC: Now, brothers, witnesses, we are about to listen to the groom and bride giving themselves to each other.
…:
Mohammad Shakir, will you take [Ms C] to be your wife to live together according to Islam?
MR SHAKIR: Mm.
MR OMERDIC: [Ms C], will you take Mr Shakir to be your husband to live together according to Islam law?
MS C:Yes.
MR OMERDIC: So give her offer and say her this words. Watch — watch his face. He is going to say something to you. Say to her, Mohammad — say to her, “I offer you myself.” Can you repeat this?
…
MR SHAKIR: Mm.
MR OMERDIC: You understand this? I’m going to — to — to — just ………. that’s it. Yeah, that’s it. Yeah. O.K. I’m going to read the sentence. If you understand it you can say it in your language, brother, ‘cause it easier for you.
…
MR OMERDIC: Mohammad, listen to me, sir. “I offer you myself in marriage — — —“
At this point the video recording stops.
The Certificate of Islamic Marriage completed during the ceremony (the Ceremony) is headed:
Board of Imams Victoria
Australia
Certificate of Islamic Marriage
The names of Mr Shakir, Ms C and the two male witnesses are handwritten in spaces provided in the Certificate, and it is signed by those four people and by Mr Omerdic as officiating Imam. The Certificate records that Mr Shakir and Ms C were united in Islamic marriage at the centre. A paragraph at the bottom of the Certificate reads:
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 ceremony performed by Mr Omerdic between Mr Shakir and Ms C recorded on video appears consistent with the form of ceremony in the documents found in the folder in Mr Omerdic’s office to which I referred in paragraph [5].
The record of interview
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.
QO.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.
QAnd what certificate is that? What’s that called?
ACertificate of marriage.
QCertificate of marriage. Is that the Islam marriage?
ANo.
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?
AThey don’t like to register in head office.
QWhy 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.
QO.K., all right.
AThis 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.
QO.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?
AIf — 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?
AYeah.
QO.K. Is there any other difference?
ANo.
QO.K. Because there — there doesn’t seem to be any other difference. The same information is read, the dowry is given — — —
AEverything is the same — the same.
Q— — — the witnesses were there.
AOn that day I didn’t ask for any IDs — — —
QYeah.
A— — — because they didn’t — they look like girl is a girl so not — not marriageable age.
QYeah.
ASo I didn’t ask — I didn’t think — feel that is something serious.
Q… Well, 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 — — —
AYes, yeah.
Q— — — that it was a marriage.
AYeah, looked like it.
Relevant legislative provisions
Mr Omerdic was charged under s 100 of the Act:
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.
Part IV of the Act deals with solemnisation of marriages in Australia. Section 32 of the Act, which falls within sub‑div A of pt IV, reads:
A minister of religion who is registered under this Subdivision in any register may solemnise marriages at any place in Australia.
Section 41 of the Act reads:
A marriage shall be solemnised by or in the presence of an authorised celebrant who is authorised to solemnise marriages at the place where the marriage takes place.
It is not in dispute that Mr Omerdic was on the register of ministers of religion kept for the purposes of sub-div A of div 1 of pt IV, and was an authorised celebrant as defined by the Act.
The form of ceremony required for marriage is governed by s 45 of the Act, sub-s (1) which reads:
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.
A person is of marriageable age if the person has attained the age of 18 years.[1] It is not in dispute that at the date of the ceremony Ms C was not of marriageable age. Where either of the parties is not of marriageable age the marriage is void.[2]
[1]Marriage Act 1961 (Cth) s 11.
[2]Ibid s 23B(1).
A notice containing certain particulars in relation to the parties, and a declaration as to certain matters by the parties, must, pursuant to s 42 of the Act, be given no later than one month before the date of the marriage. 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.
A certificate of marriage prepared and signed in accordance with s 50 is conclusive evidence that the marriage was solemnised in accordance with s 45 of the Act. An authorised celebrant who solemnises a marriage is required by s 50 to prepare a certificate in the prescribed form. Following the ceremony Mr Omerdic did not prepare a certificate in accordance with s 50. However, a marriage is not invalidated by failure of the authorised celebrant to prepare a certificate.
Section 5A of the Act provides that Chapter 2 of the Criminal Code 1995 (Cth) 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’.[3]
[3]Criminal Code 1995 (Cth) s 5.2(1).
Grounds of appeal
Mr Omerdic has a right to appeal the decision of Magistrate Goldberg to this Court on a question of law only.[4] The notice of appeal contains three grounds. However, at the hearing of the appeal Mr Omerdic relied on Grounds 2 and 3 only:
[4]Criminal Procedure Act 2009 (Vic) s 272.
2.The Magistrate erred in finding the existence of the physical element (conduct) of solemnising a marriage, under s 100 of the Marriage Act 1961 (Cth).
PARTICULARS
i.In addition to the matters raised under cover of Ground 1, there was no evidence of a certificate of marriage prepared and signed in accordance with section 50 of the Marriage Act 1961 (Cth) (see s 45(3)).
ii.The evidence shows there were steps taken to perform an Islamic marriage which was not concluded; nor a “marriage” for the purposes of the Marriage Act 1961 (Cth).
3.The Magistrate erred in finding the existence of the fault element (intention) in respect of the physical element of solemnising a marriage, under s 100 of the Marriage Act 1961 (Cth).
PARTICULARS
i.The evidence did not permit a finding that the Appellant meant to solemnise a marriage under the Marriage Act 1961 (Cth).
ii.The evidence demonstrated that the Appellant’s conduct merely related to the performance of a religious blessing or Nikah.
Ground 2 — The ceremony
Argument advanced for the appellant was directed to the second particular of ground 2, and was broken into two parts. Was it reasonably open for Magistrate Goldberg to find the ceremony was:
(a) completed?
(b) of a form recognised as sufficient for marriage by Mr Omerdic’s religious body so as to satisfy the requirements of s 45(1) of the Act?
I will deal with these arguments in turn.
Was the ceremony completed?
Appellant
Mr Omerdic submitted, first, that direct evidence of the ceremony stopped at the point the video recording ceased. Second, language difficulties were experienced between Mr Omerdic and Mr Shakir, and there was urging by Mr Omerdic to have Mr Shakir respond to aspects of the ceremony. No affirmative response from Mr Shakir to the offering by groom requirement of the ceremony was given before the recording ceases. Third, essential parts of the ceremony had not taken place when the video recording ceased, including the offer by groom, acceptance by the bride, giving of the gift to each other and DOA. Fourth, because the Certificate was completed and signed during the video recording, and thus prior to completion of the ceremony, the existence of the completed Certificate does not logically support an inference that the ceremony was completed. Fifth, the unexplained failure by the Prosecution to call the men named as witnesses in the Certificate, who were present during the ceremony, should have led to an inference that the evidence of those witnesses would not have supported the Prosecution’s case that the ceremony was completed, and rendered unsafe a finding of guilt. In summary, Mr Omderdic submitted on the evidence lead it was speculative to infer that the ceremony was completed. Alternatively, an inference that the ceremony was not completed could not be excluded. In either case the finding that the ceremony was completed was unsafe.
Prosecution
The Prosecution first drew attention to the following evidence. The completed Certificate, which the Prosecution submitted was evidence of the intention of those present to complete the ceremony. The video recording showed those present followed what Mr Omerdic described as a marriage ceremony. This included the prayers recited by Mr Omerdic, the promise of the dowry and the completed and signed Certificate. As Mr Omerdic acknowledged in the record of interview, Mr Shakir and Ms C left the ceremony understanding they were married. After he had been shown the video recording during the police interview, Mr Omerdic agreed that what was seen looked like a marriage. The Prosecution submitted an inference that the ceremony was completed followed from this evidence.
Second, the Prosecution submitted no Jones v Dunkel[5] inference should be drawn against it for failure to call the two named witnesses. No statements were taken by the police from either witness, and all the informant knew of each was their names. Third, it was submitted no alternative inference arose from the evidence, and it was nothing more than conjecture, supposition or imagination that the ceremony might not have been completed.
[5](1959) 101 CLR 298.
Analysis
To the point the video recording stopped, the participants, including Mr Omerdic, were proceeding with the ceremony as if to completion. I accept the completed and signed Certificate is evidence of the intention of those present to complete the ceremony. When interviewed, Mr Omerdic said what was seen on the video recording looked like a marriage, and that Mr Shakir and Ms C left believing they were husband and wife, and that it was recognised they were married. The ceremony being performed was consistent in form with the ceremony set out in the documents found in the folder in Mr Omerdic’s office. In my view a conclusion that the ceremony was completed followed as a rational inference from this evidence.
That is not the end of the matter. Mr Omerdic submitted an alternative inference was available, which was consistent with innocence, that the ceremony was not completed. Dealing with such circumstances the majority in Knight v R said:[6]
The question which arose in the Full Court and which arises in this appeal is whether the verdict of the jury on the second count was unsafe and unsatisfactory. That question can, in the circumstances of this case, be rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit Salvo. In considering that question, the Full Court were required to make their own assessment of the evidence, within the limits imposed by the fact that they neither saw nor heard the witnesses. They were required to act upon that view of the facts which the jury were entitled to take having seen and heard the witnesses.
For an inference to be rational or reasonable it must follow from established facts, and not rest on mere conjecture or speculation.[7]
[6](1992) 175 CLR 495 (Mason CJ, Dawson and Toohey JJ) (citations omitted).
[7]R v Baden-Clay (2016) 334 ALR 234 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
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.
Mr Omerdic relied on a Jones v Dunkel[8] inference which he submitted should have been drawn because of the failure to call the two male witnesses. Such an inference is only available when failure to call a witness is in breach of the Prosecution’s duty to call a material witness. Magistrate Goldberg observed:
No satisfactory explanation is proffered to explain the failure to call witnesses.
I understand that observation to be a reference to, or to include, the two male witnesses to the ceremony. There were good reasons for the Prosecution not to call theses witnesses. The informant gave evidence that neither witness was identified, save by name, and neither had been spoken to. There was no evidence either witness was available. Both witnesses were in Mr Omerdic’s office during the ceremony. However, it is not known how much of what occurred they understood and would be able to give evidence about. In the transcript of the video recording the unknown males, who I infer were the male witnesses, speak in a language that the interpreter identifies as a Rohingya dialect which he does not understand.[9]
[8](1959) 101 CLR 298.
[9]Fiona JaneGillan v Police (2004) 149 A Crim R 354 [46] – [48].
If I am wrong and a Jones v Dunkel[10] inference was available because the Prosecution failed to call the male witnesses, the above matters are relevant to whether the inference should be drawn, and to the weight of the inference if drawn. It was open to Magistrate Goldberg in the circumstances not to draw an inference or to conclude that the available inference had no significant impact on the strength of the Prosecution case. A Jones v Dunkel inference would not form the evidentiary basis for the alternative hypothesis that the ceremony was not completed.
[10](1959) 101 CLR 298.
In my view it was open for Magistrate Goldberg to conclude that the ceremony was completed.
Was the ceremony recognised as sufficient for marriage?
Appellant
Mr Omerdic submitted that the only evidence as to the form of ceremony recognised as sufficient for marriage by his religious body were the answers he gave during the record of interview. He argued the state of that evidence was confused, and, was inadequate or insufficient to establish that he had solemnised a marriage according to the necessary form of ceremony.
Second, Mr Omerdic submitted the answers given by him during the record of interview demonstrate a clear distinction between a marriage recognised under Australian law and a marriage recognised under Islamic law. As Imam he performed marriages under the Act. He also performed ‘nikah’. Mr Omerdic submitted that while it was his practice to conduct the nikah in a similar way to a marriage under Australian law, there were differences in terms of preparations, meaning and consequences. Based on the answers he gave on the record of interview it could not be comfortably concluded that the ceremony he performed was a marriage under Australian law rather than the nikah.
Prosecution
The Prosecution submitted, first, Mr Omerdic was endorsed as a minister of the Islamic religion by the Australian Federation of Islamic Councils and, as an Imam, was authorised to solemnise Islamic marriages. Mr Omerdic had practised as an Imam, was registered as a marriage celebrant from 1987, and in the years since would have solemnised hundreds of Islamic marriages in Australia. It was part of Mr Omerdic’s role at the centre to marry people. He would have been well aware that a solemnised Islamic marriage was recognised as marriage pursuant to Australian law.
Second, the ceremony depicted in the video recording reflects the description of a lawful marriage ceremony given by Mr Omerdic in the record of interview, and the text of documents located in the folder in Mr Omerdic’s office at the centre. During his police interview Mr Omerdic admitted in relation to the video recording that ‘this is the text of marriage’, the text was given to him by the Imams Board, it was the only text he had, and the events depicted in the video recording reflected his usual procedure. When asked later in the record of interview, after having been shown the video recording, whether what was seen was a marriage, Mr Omerdic responded, ‘Yeah, looked like it’.
Third, Mr Omerdic and the parties completed the Certificate. During his record of interview Mr Omerdic accepted that such a certificate is issued because Imams ‘take care of marriages’, is proof of an Islamic marriage and is official as ‘they submit to each other, give dowry, have witnesses, have an agreement’.
Fourth, the distinction relied upon that an Australian marriage needs to be registered, was in substance no distinction at all. As Magistrate Goldberg found, performing the ceremony was solemnisation of the marriage, which is in fact the offence.
Analysis
I accept the Prosecution’s submissions on this point. 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 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 that 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 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.
During the record of interview Mr Omerdic said that to make a marriage official, if the parties wish the marriage to be registered, they should give the celebrant a notice for intended marriage form a minimum of one month before the celebration. Mr Omerdic added that the ceremony was the same whether or not the parties wished to have their marriage registered. When asked why the parties would not want to register, Mr Omerdic said he did not know, and that he would ask the parties ‘You like to be registered or just nikah?’, adding that nikah means marriage ‘… not only relationship, not only engagement, it’s marriage.’ Later in the interview when asked what wording was required to marry someone legitimately Mr Omerdic replied:
For example, I mention groom names, ‘Will you take – will you take,’ girl’s names, ‘to be your wife, to live together according by Islamic law,’ because Islamic law – marriage through Islamic law recognised … of Australia.
So we do this, because I am just religious marriage celebrant. Religious, not civil.
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 at the process of registration to make a marriage official. However, the notice and registration are not requirements for solemnisation of marriage under the Act.
I conclude that it was open to Magistrate Goldberg to find that the ceremony performed by Mr Omerdic between the parties was solemnisation of a marriage in accordance with s 45(1) of the Act.
Ground 3 — Intention to solemnise a marriage
Appellant
Mr Omerdic submitted first, that in the record of interview he demonstrated an awareness of the requirements of the Act, and maintained he did not intend to perform a marriage under the Act. Second, Mr Omerdic said he conducted a religious blessing (nikah) which did not involve any forms other than a certificate. Third, Mr Omerdic’s submitted his answers during the record of interview demonstrate a difference in his mind between marriage under the Act and nikah. Fourth, no certificate under the Act was prepared or contemplated. Fifth, the Certificate, which was completed, stated it was not evidence of and did not have the effect of creating a marriage under the Act. Sixth, a contract of Islamic marriage is given to the parties to complete later, and is not for official marriage purposes. Seventh, no notice of intended marriage was given in accordance with the Act. Eighth, no proof of official date and place of birth of the parties was given as required by s 42(1)(b) of the Act. Ninth, no declaration was made as to the absence of legal impediment pursuant to s 42(1)(c) of the Act. Tenth, Mr Omerdic did not provide the parties with the document outlining the obligations and consequences of marriage in accordance with s 42(5A) of the Act. Eleventh, the requirements of the Act were complied with when Mr Omerdic performed an Australian marriage ceremony. Twelfth, Mr Omerdic is a man of good character. Evidence of good character was evidence as to credit and evidence that ‘could rationally affect (directly or indirectly) the assessment of the probability’ that Mr Omerdic committed the offence charged.[11]
[11]Bishop v The Queen (2013) 39 VR 642; TKWJ v The Queen (2002) 212 CLR 124 [35], [94].
Mr Omerdic argued that an inference as to intention which was consistent with innocence could not be excluded because the answers he gave during the record of interview indicated his understanding that the requirements for marriage under the Act included notice of intention to marry, registration, an Australian certificate of marriage, provision by the parties of identification as to age, and the parties being of marriageable age. These requirements had not been met. Because a reasonable inference consistent with innocence had not been excluded it was not open to find the charge proved.
Prosecution
The Prosecution submitted, first, that Mr Omerdic was authorised to solemnise Islamic marriages. The ceremony was performed in his office at the centre where he marries people. The Certificate was completed. Mr Omerdic admitted certificates were issued because Imams ‘take care of marriages’. The ceremony was conducted pursuant to the text given to him by the Imams Board, which he said was the text for marriage.
Second, it was submitted the content of the ceremony itself strongly supported the inference that Mr Omerdic intended to solemnise a marriage. The ceremony was performed in an office at the mosque by Mr Omerdic as Imam, a person authorised to conduct Islamic marriages recognised under Australian law. The parties were identified as bride and groom, two witnesses were present, a dowry was given and the marriage text was used. At no stage during the ceremony did Mr Omerdic tell the bride and groom that he did not recognise the marriage as official, or that marriage had not occurred. It was submitted the failure by Mr Omerdic to comply with documentary requirements of the Act, such as the notice of intended marriage, marriage certificate, and registration were not evidence that Mr Omerdic did not intend to perform a marriage, but were avoided because preparation of these documents could alert authorities that he had solemnised a marriage involving a party not of marriageable age. As a very experienced authorised celebrant, Mr Omerdic would be aware that lack of notice or failure to register did not invalidate solemnisation of a marriage.
Third, in the record of interview Mr Omerdic admitted that he used the same words whether or not parties intended to have the marriage registered, and agreed, based on the ceremony depicted in the video recording, that Mr Shakir and Ms C would have left the centre believing they were married. Finally, there was evidence of Mr Omerdic having lied to police in the record of interview, which could be used as evidence of consciousness of guilt on his part.
Analysis
Mr Omerdic’s state of mind when he performed the ceremony could only be inferred from the facts found by Magistrate Goldberg. The conclusion of guilt necessarily involved a finding by inference that when Mr Omerdic performed the ceremony he intended to solemnise a marriage between Mr Shakir and Ms C in accordance with s 45(1) of the Act.
Magistrate Goldberg concluded that the ceremony was completed, and was sufficient in form and ceremony for the solemnisation of marriage. Mr Omerdic had been an Imam and 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. Mr Omerdic said what was seen on the video was his usual procedure, was the text of marriage and looked like marriage. It was obviously open to infer that when he performed the ceremony Mr Omerdic intended to solemnise a marriage.
During the police interview Mr Omerdic stated he did not consider Mr Shakir and Ms C married, and that he had not intended to marry them. That is evidence from which an inference consistent with innocence might have followed. However, it was open to Magistrate Goldberg to disbelieve Mr Omerdic, and there are reasons why he may have done so. There were inconsistencies in Mr Omerdic’s answers during the record of interview which, it could be concluded, were adverse to his credit. These inconsistencies include Mr Omerdic saying the ceremony was ‘short and sharp’, and lasted around five minutes. The video recording lasted 12 minutes and the ceremony was not completed when it stopped. Early in the record of interview Mr Omerdic said on a number of occasions there had been no mention of marriage, and that he only performed a prayer for wellbeing. However, marriage was not only mentioned, but was clearly part of the ceremony performed. When confronted with the video recording Mr Omerdic accepted what he said was the text of marriage and his usual procedure. Mr Omerdic said that he was wearing casual clothes, yet the video recording demonstrated this was not so. Mr Omerdic said nothing was written down or recorded, yet the Certificate was completed, signed by the parties, and signed by Mr Omerdic as officiating Imam. Mr Omerdic said that he did not read out the responsibilities of the bride and groom, and was asked:
Q:So 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?
A:No, because not — I not consider them they are husband and wife.
In fact Mr Omerdic read the parties their rights and obligations as husband and wife.
There are other examples. Magistrate Goldberg may well have concluded there was inconsistency between Mr Omerdic’s statement early in the record of interview that he performed a prayer for wellbeing only, and the position he adopted after he was confronted with the evidence of the Certificate and the video recording. When first asked, Mr Omerdic said parties to an Islamic marriage certificate were required to show identification, that he would ask for identification as to age, and would never let people sign the Certificate or marry them without identification because it was not lawful. When confronted with the completed Certificate Mr Omerdic’s explanation changed. He said he did not give the parties a copy of the Certificate of marriage because Ms C was under 18 and he did not recognise they were married. Whether or not, and the extent to which, these inconsistencies impacted the credit of Mr Omerdic was a matter for Magistrate Goldberg to determine on the whole of the evidence. It was a matter for Magistrate Goldberg to weigh the character evidence against the evidence which he might have concluded was adverse to credit. The point on appeal is that it was open to Magistrate Goldberg to conclude that Mr Omerdic’s credit was significantly impugned, and on that basis to not accept Mr Omerdic when he said he had not intended to perform a marriage.
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 Omderdic 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.
The evidence of good character was relevant to the likelihood that Mr Omerdic committed the offence. It was a matter for Magistrate Goldberg to assess the probative value of the good character evidence having regard to the relationship between that evidence and the offence charged, and the strength of other evidence supporting the charge. However, it remained open to Magistrate Goldberg, 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.
Conclusion
I have found against Mr Omerdic on each of the grounds of appeal on which he relies. The appeal will be dismissed. I will hear from the parties as to any associated matters.
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