| 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.
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- AGLC
- Omerdic v Angland [2018] VSC 174
- Case
- [2018] VSC 174
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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