Moutia Elzahed, whose Muslim husband was convicted of aiding Islamic terrorism, was denied her request to wear a full face-covering niqab while giving evidence in a damages claim against police where she alleges that officers assaulted her during a raid on her home.
The Guardian(h/t Dan G) 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.
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.
“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 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 (Isn’t that perjury? What Australian man in his right mind would want to see that 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.