Court of Appeal uncovers that a ‘niqab’ is not permitted to be worn during oral testimony

Elzahed v State of New South Wales [2018] NSWCA 103

The Court (Beazley P, Ward JA and Payne JA) was tasked with uncovering whether refusing to allow a woman to give evidence in a niqab (a full facial covering, excluding eyes) amounted to an appellable error.  No error was found; the appeal was dismissed.  Instead, the Court remarked that the trial judge (Balla DCJ) had addressed a ‘difficult case with sensitivity and care…and was fair to all parties and…at pains to ensure that justice according to law was done.’

Background

The appellant, Moutia Elzahed, is one of the wives of convicted Islamic State recruiter Hamdi Alqudsi.  In 2014, she commenced proceedings in the District Court suing the State of NSW for damages following the execution of a terrorism related search warrant at her family home.  She alleged she had been assaulted and battered by police officers when she was alone in her bed at home.

Application to give evidence in her niqab

At trial, Ms Elzahed requested to give her oral evidence in a niqab.  Upon receiving (late) notice of this, the Crown, hesitant with the validity of the request, suggested (as an alternative) that Ms Elzahed be permitted to give evidence from behind a screen, so that her face was visible to some, but not all people in the court room (as sometimes occurs with national security matters).  After a short adjournment, the primary judge raised two options for Ms Elzahed.  First, Ms Elzahed could give evidence in a remote room where her face would be uncovered.  Second, the court would be closed so that only the lawyers in the proceedings could see Ms Elzahed give evidence. Ms Elzahed’s counsel stated the suggestions were ‘very sound’.  Despite this, Ms Elzahed refused to accept either proposal.  Instead, she maintained her application to give her evidence covered in her niqab.  The primary judge refused her application. She gave no oral evidence at trial.

Reasons for dismissing the appeal

In finding no appellable error in this discretionary decision, the Court’s reasons included:

·     Ms Elzabed was a party, not a mere witness

·     Ms Elzabed’s evidence was strongly contentious

·     Viewing Ms Elzabed’s face while she was giving her evidence was capable of affecting the resolution of the conflict between the competing evidentiary accounts

Why was leave granted for a discretionary judgment?

Discretionary judgments such as this are infrequently granted leave to appeal. If they are, they face a difficult threshold in satisfying the test in House v King (1936) 55 CLR 499. Here, leave to appeal was granted (Payne JA and Sackville AJA) principally on the basis that the question of whether a party should be permitted to give evidence wearing a niqab had not been the subject of appellate consideration in NSW.

Is there a conflict between Islamic law and State laws regarding the process of giving oral testimony? 

Although the Court was not asked to determine any conflict of laws issue between Islamic and State laws on the issue of religious attire during oral testimony, an indication of the issues is contained in the ‘Explanatory Note on the Judicial Process and Participation of Muslims’, published in December 2017, by the Australian National Imams Council.  It states (at 5.3) that it is not contrary to Sharia law for an Islamic woman to uncover her face when giving evidence in court so that the judge can identify her and make credit assessments.   Further (Islamic) references in support of this include:

  • ‘It is not permitted to give testimony against a woman in Nikab until she uncovers her face so that it may be known who she is and what she looks like.’ (Al-Sharh al-Kabeer li’l- Shaykh al-Dardeer, 4/194)
  • ‘He cannot testify against a woman unless he knows who she is.’ (Al-Mughni, 7/459; al-Sharh al-Kabeer ‘ala Matan al-Muqni’, 7/348, bi haamish al-Mughni; al-Hidaayah ma’a Takmilat Fath al-Qadeer, 10/26).

Moreover, according to the majority of Muslim scholars and Islamic schools of thought, the niqab (which is a far greater facial coverer than others, such as the ‘hijab’) is not a requirement of Islam (although the question is not entirely resolved).

Related issues about giving oral testimony

In related contexts, Australian legislatures and courts have demonstrated innovative approaches in addressing novel questions about ways in which evidence can be given by a witness.  Examples include ‘gender specific evidence’ in native title cases (Western Australia v Ward (1997) 76 FCR 492), the use of screens in cases involving evidence having national security implications (Lodhi v R (2006) 65 NSWLR 573; BUSB v R (2011) 80 NSWLR 170) and the use of remote video facilities in relation to evidence from victims in sexual assault cases (s 294B of the Criminal Procedure Act 1986 (NSW)).

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