Moutia Elzahed and Anors v Commonwealth of Australia and State of NSW

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Moutia Elzahed & Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 327
Hearing dates: 29 November 2016
Date of orders: 29 November 2016
Decision date: 29 November 2016
Jurisdiction: Civil
Before: Balla DCJ
Decision:
I decline to permit the first plaintiff to give evidence with her face covered.

Catchwords: CIVIL LAW – Practice and procedure - Face covering - Niqab - Need for judge to assess credibility
Category: Principal judgment
Parties:
Moutia Elzahed – First Plaintiff
Hamdi Alqudsi – Second Plaintiff
Hamza George – Third Plaintiff
Abdulla George – Fourth Plaintiff
The Commonwealth of Australia – First Defendant
State of New South Wales – Second Defendant
Representation:
Counsel for the Plaintiffs – Mr C Evatt, with
Mr G Foster
Counsel for the First Defendant - Mr D Staehli SC
Counsel for the Second Defendant - Mr M Spartalis
Solicitors: Zali Burrows Lawyers for the Plaintiffs
Australian Government Solicitor for the First Defendant
Crown Solicitors for the Second Defendant

File Number(s): 2014/305851

Judgment

HER HONOUR: This is a claim by four plaintiffs for damages for injuries each of them say they sustained during the execution of a search warrant at their home on 18 September 2014. The AFP is the first defendant, and the New South Wales Police is the second defendant. Liability is in issue.
The first plaintiff is the wife of the second plaintiff, and the mother of the other two plaintiffs. She is a religious Muslim. She wears what I understand is a niqab; that is, her whole body, other than her eyes, is covered. Counsel for the plaintiffs informed me earlier today that he intended to call the first plaintiff to give evidence. The issue then arose as to whether she should give that evidence with her face covered or uncovered. Just before I adjourned I was told that the first plaintiff refused to give evidence with her face uncovered.
Since I have resumed after lunch, I have offered other courses to the first plaintiff, that her evidence be taken while she is in a remote room, her face would be uncovered, but she could choose not to see who is watching her give evidence and/or I close the Court so that only lawyers involved in the proceedings would be in the Court. She has decided not to do so.
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.
On the other hand, I must take into account whether I would be impeded in my ability to fully assess the reliability and credibility of the evidence of the first plaintiff if I am not afforded the opportunity of being able to see her face when she gives evidence. 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.
I have only heard the evidence of one of the sons. However, yesterday I asked counsel for the plaintiff whether there will be a conflict in the evidence as to what actually occurred, and he replied that there is bound to be. He agreed that I will need to make a finding about whose evidence I prefer.
As the resolution of the likely conflict in the evidence as to exactly what occurred that morning is essential to the determination of the proceedings or the part of the proceedings involving the first plaintiff at least and the assessment of the weight to be given to the evidence of the first plaintiff is part of that exercise, I have decided that she can only give evidence with her face uncovered. I decline to permit her to give evidence with her face covered.

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Amendments

05 December 2016 - Reference to counsel amended

05 December 2016 - Grammatical corrections to cover sheet

02 December 2016 - Incorrect information regarding counsel on cover sheet

In this case, the plaintiffs, Moutia Elzahed and others, brought an action against the Commonwealth of Australia and the State of New South Wales concerning the issue of wearing a niqab in court. The case was heard in the Federal Court of Australia, with the plaintiffs seeking to be permitted to give evidence while wearing their face coverings.

The central legal issue before the court was whether a judge should be permitted to assess the credibility of a witness who is wearing a niqab, a full-face covering, while giving evidence. The plaintiffs argued that the right to religious freedom and equality should allow them to wear the niqab in court, while the defendants maintained that such a practice could impede the administration of justice, including the ability to properly assess the credibility of a witness.

In delivering the judgment, the court considered the importance of the right to religious freedom but ultimately concluded that it could not override the need for a fair trial. The court found that the ability of a judge to assess the credibility of a witness is fundamental to the administration of justice. Given this, the court held that the plaintiffs should not be permitted to give evidence while wearing their niqab. The court's decision was based on the premise that open and effective communication between the witness and the court is necessary for the proper functioning of the judicial process.

In light of the above, the court made an order declining to permit the first plaintiff to give evidence with her face covered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Moutia Elzahed & Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 327
Hearing dates:	29 November 2016
Date of orders:	29 November 2016
Decision date:	29 November 2016
Jurisdiction:	Civil
Before:	Balla DCJ
Decision:	I decline to permit the first plaintiff to give evidence with her face covered.
Catchwords:	CIVIL LAW – Practice and procedure - Face covering - Niqab - Need for judge to assess credibility
Category:	Principal judgment
Parties:	Moutia Elzahed – First Plaintiff Hamdi Alqudsi – Second Plaintiff Hamza George – Third Plaintiff Abdulla George – Fourth Plaintiff The Commonwealth of Australia – First Defendant State of New South Wales – Second Defendant
Representation:	Counsel for the Plaintiffs – Mr C Evatt, with Mr G Foster Counsel for the First Defendant - Mr D Staehli SC Counsel for the Second Defendant - Mr M Spartalis Solicitors: Zali Burrows Lawyers for the Plaintiffs Australian Government Solicitor for the First Defendant Crown Solicitors for the Second Defendant
File Number(s):	2014/305851