Cemino v Cannan and Ors – Sep 2018

The Victorian Supreme Court has held that a Magistrate in Echuca acted unlawfully by refusing a young Aboriginal man’s request to be sentenced before the Koori Court sitting at Shepparton: Cemino v Cannan and Ors [2018] VSC 535

The Victorian Supreme Court has confirmed that courts must consider the distinct cultural rights of Aboriginal people under Victoria’s Charter of Human Rights and Responsibilities (the Charter) when making decisions in relation to an Aboriginal person’s request to be heard in the Koori Court.

This decision has significant implications for Aboriginal people across Victoria and for decisions in the Courts about whether an Aboriginal person has access to the Koori Court.

In April 2017, Mr Zayden Cemino applied to the Magistrates’ Court in Echuca to transfer the criminal charges he was facing to the Koori Court in Shepparton for sentencing. Mr Cemino’s solicitor told the Magistrate that Mr Cemino wanted to go before his elders in the Koori Court, where he would have felt more comfortable discussing circumstances around his actions, including the recent passing of his mother, a Yorta Yorta woman.

The Koori Court had jurisdiction to deal with the proceedings and the transfer to Shepparton was necessary because the Koori Court does not sit at the Echuca Magistrates’ Court. Importantly, both Echuca and Shepparton are located on Yorta Yorta land, with many Aboriginal people from the Yorta Yorta clan residing in Echuca, Shepparton and elsewhere.

The Magistrates’ Court in Echuca refused the application. A key basis of the Magistrates’ decision was his understanding of the importance of the ‘proper venue’ principle discussed in a 1994 Supreme Court decision Rossi v Martland (1994) 75 A Crim R 411. According to this principle, the ‘proper venue’ for a case to be heard is the venue nearest to the place where the offence was alleged to be committed, or the place of residence of the defendant.

The Magistrate also reasoned that the Aboriginal cultural training he and other non-Koori Court Magistrates had previously undertaken was a factor weighing against the transfer of proceedings for the purpose of accessing the Koori Court, implying that Mr Cemino’s Aboriginal cultural identity would be adequately accommodated in the mainstream division of the Magistrates’ Court.

The Victorian Aboriginal Legal Service (VALS), on behalf of Mr Cemino, appealed the Magistrates’ Court’s decision on two grounds:

• That the Court made an error of law in applying the principles of the 1994 Rossi case, as it was effectively applying a clause of the Magistrates’ Court Act 1988 (Vic) which had since been repealed.
• That the Court acted unlawfully under the Charter of Human Rights and Responsibilities, by failing to properly consider the plaintiff’s cultural rights under s 19(2)(a) of the Charter, and his right to equality under s 8(3) of the Charter, when making a decision about whether to transfer the matter to the Koori Court.

Mr Cemino sought an order that the Magistrates’ decision be quashed, and that he be given another opportunity to apply for transfer to the Koori Court before a different Magistrate sitting at Echuca. The appeal was opposed by the Office of Public Prosecutions (OPP), acting on behalf of the defendant police informants who had filed the various charges against Mr Cemino.

The Victorian Equal Opportunity and Human Rights Commission (Commission) intervened in the appeal under s 40(1) of the Charter to make submissions on the application of the Charter to the proceedings. The Attorney-General also intervened to make submissions in relation to the application of the Charter.

In relation to the first ground, Justice Ginnane of the Supreme Court found that the Magistrate had overlooked aspects of the legislation that clearly permitted the transfer of certain matters to other locations in order for Aboriginal persons in the criminal justice system to access the Koori Court.

Justice Ginnane found that the Magistrate made an error by giving primacy to the Rossi principles, and that the traditional ‘proper venue’ considerations should generally be given less weight than the purposes of the Koori Court.

On the Charter ground, Justice Ginnane confirmed that the rights protected in s 8(3) and 19(2)(a) were directly applicable to the
Magistrates’ Court by reason of s 6(2)(b) of the Charter, which provides that the Charter applies to courts and tribunals, to the extent they have certain functions. Accordingly, courts must consider the distinct cultural rights of Aboriginal people and their right to equality when making decisions in relation to an Aboriginal person’s request to be heard in the Koori Court.

Justice Ginnane accepted the further evidence given by Mr Cemino on appeal that he feels better understood by the elders in the Koori Court, and that he can also better understand what is going on in Koori Court proceedings as opposed to mainstream Magistrates’ Court proceedings.

Further, Justice Ginnane found that the Magistrates’ Court should have taken into account the plaintiff’s rights under s 8(3) and s 19(2)(a) when deciding whether to transfer the proceedings to the Koori Court by reason of s 32(1) of the Charter, which requires that all statutory provisions be interpreted in a way that is compatible with human rights so far as it is possible to do so consistently with their purpose.

The Court also recognised the important role that Koori Courts play in addressing systemic disadvantage faced by Aboriginal people in the justice system:

[143] The Koori Court was established for purposes that included addressing systemic disadvantage faced by Aboriginal people who have been over-represented in the criminal justice system, in imprisonment and in deaths in custody. The Koori Court seeks to reduce that systemic disadvantage by providing special measures and accommodations so that the procedure is less disadvantageous for Aboriginal offenders; it protects against indirect discrimination on the basis of race. It is a means through which systemic disadvantage in the justice system is mitigated in pursuance of the s 8(3) right.

The Supreme Court did not agree with the submissions of the plaintiff and the Commission on one Charter point, finding the Magistrates’ exercise of his discretion was a judicial, rather than administrative, decision and was therefore not acting as a ‘public authority’ within the scope of s 4(1)(j) of the Charter. This meant that the Magistrates’ Court was not subject to the obligations imposed on a public authority in s 38(1) of the Charter.

His Honour ordered that the Magistrates’ decision be set aside, and that Mr Cemino be allowed to have a different Magistrate consider his transfer request.

The Supreme Court’s confirmation that Magistrates must consider the purposes, scope and objects of the Koori Court legislation, as well as the right to equality and the Aboriginal cultural rights under the Charter, is likely to significantly increase access to the Koori Court for Aboriginal people across Victoria. In particular, this decision will assist Aboriginal people who are seeking to have criminal proceedings transferred to a different venue for the purpose of accessing the Koori Court.

This an important factor in reducing over-representation of Aboriginal people in Victorian prisons. Access to the Koori Courts allows Aboriginal people to have their matters heard in a culturally appropriate forum that incorporates traditional Aboriginal beliefs and practices.

Significantly, the Koori Court incorporates the presence and participation of local Elders and Respected Persons who often know the history and family background of the person being sentenced. This reinforces the offender’s Aboriginal culture and identity, and encourages them to participate. It also provides an opportunity for Elders and Respected Persons to participate in the decision making of criminal justice matters for Aboriginal people from their own community.

This Supreme Court decision is the first time that Aboriginal cultural rights under the Charter have been found to be directly applicable to courts and tribunals by reason of s 6(2)(b) of the Charter. This means that Magistrates must consider Aboriginal cultural rights when making these types of decisions, even when they are acting in a judicial capacity.

It is also significant that Mr Cemino’s detailed evidence about his reasons for wanting to go before the Koori Court was accepted by the Supreme Court, where that evidence had not been put before the Magistrates’ Court in Echuca. Ordinarily, new evidence is not relevant to judicial review proceedings, but in these proceedings the evidence was allowed because it was relevant to the additional Charter arguments that had been put on appeal.

This aspect of the decision may provide more general support for Aboriginal plaintiffs in judicial review proceedings who wish to bring additional evidence about the enjoyment of culture and identity, where that evidence was not before the original decision maker, but is relevant to whether or not their cultural rights were properly taken into account.

This Supreme Court decision comes just weeks after the Victorian Government’s announcement of a further $12.3 million in funding for the expansion of Koori Courts across Victoria under phase four of the Aboriginal Justice Agreement further demonstrates the therapeutic potential of Koori Courts.

Written by Tal Shmerling, Senior Legal Adviser at the Victorian Equal Opportunity and Human Rights Commission, and Patrick Warner, principal solicitor of civil law at VALS.