Source: The Guardian
Moutia Elzahed, whose husband was convicted of aiding terrorism, is denied request in her damages claim against
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.