An Australian judge has denied a Muslim woman’s request to wear a niqab while testifying in a damages suit against police, where she alleges police assaulted her during a search of her home.
In New South Wales District Court on Tuesday, Judge Audrey Balla ruled on a request by Moutia Elzahed to wear her niqab while testifying in court, in what could be one of the first such decisions in Australia.
Balla offered a number of alternatives to Elzahed – including having the court closed to the public or testifying in a remote room – but she refused to accept the alternatives, as there would always be male legal representatives in the room. the room.
The issue was first raised by Elzahed’s lawyer Clive Evatt during Tuesday’s hearing. The case concerns the behavior of NSW police during a raid on Elzahed’s home in September 2014 as part of the joint counterterrorism operation Appleby. Elzahed’s husband Hamdi Alqudsi was convicted of aiding terrorism in September 2016 for helping recruit Australians to fight in Syria.
Evatt told the court: “I am told that she is of Muslim religion and that it is against her religion to reveal her face to men, but not to women, and therefore I am told that she is a Muslim. won’t take off its veil, if that’s the correct expression, or whatever.
“Just before Your Honor speaks on this, I don’t see much difference between that and testifying on the phone. “
He told the court that it was “the first time I have experienced it” and that he was not clear on how other courts have dealt with similar cases. He admitted that “there are difficulties if the face is covered, in my opinion”.
New South Wales Police attorney Michael Spartalis said he preferred she testify without covering her face.
“Facial expressions are a very important part of the testimony and as I understand it, in these courts, in New South Wales at least, I understand or remember that if you are here you have to show your face. “, did he declare.
Making a decision, Balla said: “It is my role to ensure that there is a fair trial for all parties. I must balance, 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 complainant’s testimony if I did not have the opportunity to see her face when she gives evidence.
“I am well aware that the behavior of a witness and the sight 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. ”
The decision may complicate Elzahed’s case against the police, in the absence of any evidence provided by them on the circumstances of the raid. But the decision to exclude his testimony could also later constitute a potential ground for judicial review by the Supreme Court of New South Wales.
The woman’s son, Abdullah George, testified on Tuesday, where he claimed his mother told him she was assaulted during the raids.
He told the court: “When my mother approached me, she sat down and explained to me that they had hit her in the face, then she explained that while she was trying to get away from it all. cover up and – while she was holding the blanket over her body because she was – like, she wasn’t really dressed, the – once she refused to take the blanket off for the man who entered at the start of the raid, he hit her.
He then continued, “My mom said they wanted to see her naked and she held the blanket so they wouldn’t take it off and she also said they broke the door and she asked. Why. She said: ‘Why did they break the door?’.
NSW Police and Australian Federal Police, both of whom are parties to the action, have denied wrongdoing in the case.
The circumstances under which Muslim women who wear the niqab testify in court have been the subject of considerable debate in overseas countries.
A lengthy legal dispute in Canada in 2012 erupted after a woman who claimed to have been sexually assaulted refused to testify against the defendants unless she could wear the niqab for the duration of her testimony.
The Supreme Court of Canada finally ruled that the trial judge failed to take due account of the woman’s religion.
The court’s chief justice, Beverley McLachlin, wrote in her decision: “A secular response that requires witnesses to park their religion at the door of the courtroom is inconsistent with Canadian jurisprudence and 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 his face covered can render a trial unfair and lead to a wrongful conviction. What is needed is an approach that balances vital rights protecting religious freedom and fair trials when they are in conflict.
But the court’s reasoning was divided, which made it difficult to clearly define the circumstances under which face coverings may or may not be worn.