An Australian judge has declined a request from a Muslim woman to wear a niqab while giving evidence in a damages claim against police where she alleges that officers assaulted her during a raid on her home.
On Tuesday in the New South Wales district court, Judge Audrey Balla ruled on a request from Moutia Elzahed to wear her niqab while giving evidence to the court, in what may by one of the first rulings of its kind in Australia.
Balla offered a number of alternatives to Elzahed – including that the court be closed to the public or that she give evidence in a remote room – but she declined to accept the alternatives, because there would still male legal representatives in the room.
The issue was first raised by Elzahed’s counsel, Clive Evatt, during the hearing on Tuesday. The case concerns the conduct of NSW police during a raid on Elzahed’s house in September 2014 as part of the joint counter-terrorism operation Appleby. Elzahed’s husband Hamdi Alqudsi was convicted of aiding terrorism in September 2016 for helping to recruit Australians to fight in Syria.
Evatt told the court: “I’m instructed that she’s of the Muslim religion and it’s against her religion to reveal her face to men, although not to women, and therefore, I’m instructed she will not remove her veil, if that’s the correct expression, or whatever it is.
“Just before your honour rules on that, I can’t see much difference between that and giving evidence on telephone.”
He told the court that it was the “first time that I’ve experienced it” and that he was unclear on how other courts had examined similar matters. He acknowledged that “there are difficulties if the face is concealed, in my opinion”.
Counsel for the NSW police, Michael Spartalis, said it was their preference that she gave evidence without her face covered.
“Facial expressions is a very important part of giving evidence and, as I understand, it in these courts, in New South Wales at least, my understanding or recollection was that if you are here, you must show your face,” he said.
In making a decision, Balla said: “It is my role to ensure that there is a trial which is fair to all parties. I must balance, on the one hand, the need to respect the first plaintiff’s religious beliefs. In this case, those beliefs mean that she may choose not to give evidence, which could impact on the successful prosecution of her case.
“On the other hand, I must take into account whether I would be impeded in my ability to fully assess the reliability and credibility of the evidence of the first plaintiff if I am not afforded the opportunity of being able to see her face when she gives evidence.
“I am well aware that the demeanour of a witness and the viewing of their face is not the only way in which credibility is assessed. In some cases, the demeanour of a witness may be misleading. However, neither of those considerations can, in my view, mean that I should be completely deprived of having the assistance of seeing her face to assess her credibility.”
The ruling may complicate Elzahed’s case against the police, in the absence of any evidence being led from her about the circumstances of the raid. But the decision to exclude her evidence could also later form a potential ground for judicial review by the NSW supreme court.
The woman’s son, Abdullah George, gave evidence on Tuesday, where he alleged his mother told him that she had been assaulted during the raids.
He told the court: “When my mum walked over to me, she sat down and she explained to me that they punched her in the face, and then she explains that while she was trying to cover herself and to – while she was holding the blanket above her body because she was – like, she wasn’t really clothed, the – once she refused to take the blanket off for the man that came in at the beginning of the raid, he punched her.”
He later continued: “My mum said that they wanted to see her naked, and that she was holding the blanket so that they wouldn’t remove it and she also said that they broke the door, and that she asked why. She says, ‘why did they break the door?’.”
The NSW police and the Australian federal police, which are both parties to the action, have denied wrongdoing in the case.
The circumstances in which Muslim women who wear the niqab give evidence in court has been the subject of considerable debate in countries overseas.
A lengthy legal dispute in Canada in 2012 emerged after a woman who alleged she was sexually assaulted declined to give evidence against the defendants unless she was able to wear the niqab for the duration of her evidence.
Canada’s supreme court eventually ruled that the trial judge had not appropriately taken into account the woman’s religion.
The chief justice of the court, Beverley McLachlin, wrote in her decision: “A secular response that requires witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified.”
She continued: “On the other hand, a response that says a witness can always testify with her face covered may render a trial unfair and lead to wrongful conviction. What is required is an approach that balances the vital rights protecting freedom of religion and trial fairness when they conflict.”
But the reasoning of the court was split, which has made it difficult to outline clearly circumstances in which facial coverings can or cannot be worn.
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