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On Tuesday, Moutia Elzahed asked for permission to wear a niqab while testifying in New South Wales District Court. His request was denied. Here is the full transcript of the reasons given by Justice Audrey Balla to justify her decision:
This is a claim for damages for the injuries that each of them claims to have suffered during the execution of a search warrant at their home on September 18, 2014. AFP is the first defendant and the New South Wales Police are the second defendant. Responsibility is in question.
The first applicant is the wife of the second applicant and the mother of the other two applicants. She is a religious Muslim. She is wearing what I understand to be a niqab; that is, his whole body except his eyes is covered. Lead counsel for the complainants informed me earlier today that he intends to call the first complainant to testify. The question then arose as to whether she should testify with her face covered or uncovered. Just before adjourning, I was told that the first complainant refused to testify with her face uncovered.
Since I resumed after lunch, I have offered other courses to the first complainant; may her testimony be taken while she is in a distant room. Her face would be uncovered, but she could choose not to see who is watching her testify; and / or I close the court so that only the lawyers involved in the proceedings are present in court. She decided not to do it.
It is my role to ensure that there is a fair trial for all parties. I must weigh on the one hand the need to respect the religious beliefs of the first applicant. In this case, these beliefs mean that she may choose not to testify, which could affect the success of the prosecution of her case.
On the other hand, I must determine whether I would be hampered in my ability to fully assess the reliability and credibility of the First Applicant’s testimony if I did not have the opportunity to see her face when she testified. I am well aware that the behavior of a witness and the observation of his face are not the only means of assessing credibility. In some cases, the behavior of a witness can be misleading. However, none of these considerations can, in my opinion, mean that I should be completely deprived of the help of seeing his face to assess his credibility.
I only heard the testimony of one of the sons. However, yesterday I asked lead counsel for the Applicant if there would be a conflict in the evidence as to what actually happened, and he replied that there would necessarily be. He agreed that I will have to draw a conclusion on which evidence I prefer.
Since resolving the likely conflict in the evidence as to what exactly happened that morning is critical to determining the proceeding or part of the proceeding involving at least the first claimant, and assessing the weight to be given to the evidence of the first complainant is part of this exercise, I have decided that she can only testify with her face uncovered. I refuse to allow him to testify with his face covered.
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