Friday, May 18, 2018

Australian Appeals Court Upholds Refusal To Allow Testimony From Plaintiff Wearing Niqab

In the Australian state of New South Wales, the Court of Appeal in Elzahed v. State of New South Wales, (NWCA, May 18, 2018), rejected a Muslim woman's contention that she should have been permitted to testify in her civil suit against police officers while her face was fully covered by a niqab.  Plaintiff was suing for assault allegedly occurring during the execution of a search warrant. The court said in part:
There was no error in the primary judge’s ruling that the appellant could not give evidence with her face covered by a niqab. The appellant was a party in the case, not merely a witness. The appellant’s evidence was strongly contentious. The resolution of the case would require the primary judge to make findings about whether to accept the appellant’s evidence or the conflicting evidence of the NSW police officers. Viewing the appellant’s face while she was giving her evidence was capable of affecting the resolution of that conflict. The primary judge did not err in concluding that fairness to all parties required her to reject the appellant’s application.
The appeals court pointed out that plaintiff had not asked the trial judge for alternative arrangements such as testifying from behind a screen so that her face would be visible only to to some of the people in the courtroom. Reporting on the decision, Australian Associated Press  adds this background information:
Moutia Elzahed, who's married to jailed Islamic State extremist Hamdi Alqudsi, tried unsuccessfully to sue the state and federal governments over claims of police violence during a 2014 raid on their Sydney home....
Judge Audrey Balla in mid-2017 ordered Elzahed pay $250,000 in costs to the commonwealth and state governments responsible for the federal and state police officers involved in the 2014 raid.
In early May, Elzahed became the first person in NSW to be found guilty of refusing to stand for a judge in court after insisting she only stood for Allah when she appeared before Judge Balla.