Omerdic v Angland - [2018] VSC 174

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.

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 Omerdic v Angland

Details

AGLC: Omerdic v Angland [2018] VSC 174
Case: [2018] VSC 174
Decision Date: 13 April 2018

CaseChat Overview and Summary

Omerdic v Angland is a case that originated in the Magistrates' Court of Australia, and has been appealed on questions of law. The Appellant, Omerdic, was found to have solemnised a marriage that he had reason to believe would be void under section 100 of the Marriage Act 1961 (Cth). The Appellant contends that the religious ceremony he performed was completed and solemnised according to a form and ceremony recognised as sufficient for marriage by his religious body, as required under section 45(1) of the Act. The Appellant also argues that he did not intend to solemnise a marriage pursuant to the Act. The central legal issues before the court were whether the Appellant had indeed completed a religious ceremony and if he intended to solemnise a marriage under the Act.

The court considered whether the Appellant had completed a religious ceremony in accordance with the form and ceremony recognised by his religious body, as required under section 45(1) of the Act. The court also examined if the Appellant intended to solemnise a marriage pursuant to the Act, rather than a religious ceremony. The court noted that the Appellant had a circumstantial case to answer, and the onus was on the Respondent to establish the facts necessary to constitute the offence. The court found that there were inferences consistent with the Appellant's innocence, as per Knight v R and Jones v Dunkel.

The court found that the Appellant had indeed completed a religious ceremony in accordance with the form and ceremony recognised by his religious body, and that he did not intend to solemnise a marriage pursuant to the Act. The court held that the Appellant's actions were consistent with performing a religious ceremony, rather than a marriage under the Act. The appeal was subsequently allowed, and the conviction was quashed. The court determined that the Appellant's actions did not constitute an offence under the Act, and that the inferences were consistent with his innocence.

Orders