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Cemino v Cannan [2018] VSC 535

Category: Case Law
Binomial Name: State of Victoria
Date: 17 September 2018
Sub Category:Case Law
Place:
State/Country:Australia
Subject Matter:Law - Policy and Justice
URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2018/535.html?context=1;query=cemino;mask_path=
Summary Information:
In Cemino v Cannan [2018] VSC 535 (Cemino), Ginnane J held that the traditional principles for determining the proper venue to hear a case are not decisive when considering whether proceedings should be transferred to the Koori Court Division of the Magistrates' Court (Koori Court).

His Honour stated that the Magistrate in the trial case had put too much emphasis on the 'proper venue' principle discussed in Rossi v Martland (1994) 75 A Crim R 411 (Rossi) and had not put enough emphasis on Aboriginal Participation in the Koori Court which he was required to do under s 4F(2) of the Magistrates' Court Act 1989 (Vic) (the Act).

Cemino is an important case in that it assures better access to the Koori Court and sets the stage for Aboriginal cultural rights more broadly.

Detailed Information:
Background

Facts of the case

Zayden Cemino is a Yorta Yorta man who lives in Echuca in northern Victoria. He was charged with 25 criminal offences which he had allegedly committed in or near Echuca over a six-month period from 27 July 2016. Mr Cemino applied to the Magistrates' Court at Echuca to have all charges transferred to the Koori Court, which is a division of the Magistrates' Court in Victoria that hears selected cases where Indigenous Australians have requested the case to be transferred to it.

The issue that Mr Cemino faced was that Echuca is not presently a venue at which the Koori Court can sit and act. As such, Mr Cemino had to apply to have all charges transferred to the Koori Court at Shepparton.

Proper venue

Prior to the decision in Cemino, it had been held in Rossi that 'generally speaking, serious indictable offences should be dealt with in the locality at which they occur, especially when the defendant's address was in that locality' [57]. The Magistrate had placed considerable weight on Rossi as providing a 'strong case' for the 'proper venue' being the Magistrates' Court of Echuca, being the locality in which the offences were alleged to have occurred. As a result, the Magistrate did not place emphasis on the purpose of the Koori Court legislation and instead refused the transfer of the hearings based on the reasoning in Rossi.

Mr Cemino's appeal

Mr Cemino sought judicial review of the Magistrate's decision, arguing that the decision was affected by (a) an excessive emphasis on the finding in Rossi and (b) a lack of regard for the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter').


Details of the judgment

It was held in the Supreme Court of Victoria that the Magistrate had failed to properly exercise his discretion. The Magistrate's decision was overturned, and the proceedings were transferred to the Koori Court division of the Magistrates' Court at Echuca to rehear the application.

Ginnane J held that the discretion to transfer the proceedings must be exercised 'in accordance with the scope, purposes and objects of the Koori Court legislation and the creation of the Koori Court as well as other relevant considerations' [67], [69]. His Honour went on to state that, in determining those considerations, 'attention must primarily be given to the subject-matter, scope and purpose of the Koori Court legislation' [72] and went on to list a number of non-exhaustive considerations that a court should look at before exercising its discretionary power [73], [78].

His Honour considered the following:

1. Conflict between the Rossi principles and the purposes of the Koori Court

His Honour held that the Magistrate erred in giving primacy to the Rossi principles and that traditional considerations in determining 'proper venue' should generally be given less weight than the purposes of the Koori Court [74] and could be altered by transfer under the Koori Court legislation [77].

2. Application of the Charter

S 38(1): This section states that it's unlawful for a public authority to disregard human rights. Ginnane J found that the exercise of the discretion in s 4F(2) was a judicial power and not an administrative one. This was because the refusal was a 'binding determination of the rights of the plaintiff' [96]. The Court was therefore not a public authority and as such not bound by s 38(1) of the Charter rights in this case [95], [99].

S 6(2)(b): This section states that the Charter applies to courts and tribunals. Ginnane J held that the Court's function as it relates to s 6(2)(b) was to directly enforce only rights that relate to court proceedings an 'intermediate construction' [105].

S 8(3): This section entitles every person to equal protection of the law and equal and effective protection against discrimination. Ginnane J held that the right related to court proceedings, but only insofar as procedure, not substantive decisions. He found that the right needed to be considered in properly exercising the discretion under s 4F(2) of the Act [146]-[147].

S 19(2)(a): This section states that Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community to enjoy their identity and culture. Ginnane J held that the right needed to be considered in properly exercising the discretion under s 4F(2) of the Act [146]-[147].

Outcome: Ginnane J found that the Magistrate had erred by not considering the functions of the Court under ss 8(3) and 19(2)(a) when refusing to transfer the proceeding to the Koori Court [150].

Public Response

Ginnane J's decision in the Supreme Court confirms that more consideration needs to be given to the purpose, scope and objects of the Koori Court legislation, as well as to the right to equality and the Aboriginal cultural rights under the Charter, than to traditional 'proper venue' considerations. The Victorian Equal Opportunity and Human Rights Commission commented on the judgment, saying that it is likely to increase access to the Koori Court for Aboriginal people across Victoria.

Related Entries

Legislation
  • Charter of Human Rights and Responsibilities Act 2006 (Vic)
  • People
  • Yorta Yorta Aboriginal Community

  • References

    General Reference
    Rossi, Antonio v Martland, Raymond; The Magistrates' Court of Victoria sitting at Ballarat & The Attorney-General for the State of Victoria [1994] VicSC 483 (24 August 1994
    Tal Shmerling Cemino v Cannan and Ors Sep 2018

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