Why judge wanted ‘veiled’ witness to show her face

THE Daily Telegraph can reveal exactly what was said in court when a NSW District Court judge refused to allow a Muslim woman to give evidence while wearing a burqa.

Moutia Elzahed refused to take off her burqa in court to give evidence in a civil case, where she is suing the police over a terrorism raid at her house.

Here's what was said in court:

COURT TRANSCRIPT

NSW POLICE BARRISTER, MICHAEL SPARTALIS: No, your Honour. We're happy to press on, and I'm only talking about a minute or so, which I am sure that we can accommodate if need be.

MOUTIA ELZAHED'S LAWYER, CLIVE EVATT: Your Honour, I'm calling the first plaintiff. There's a slightly unusual religious problem. She can show her face to women, but not to men. What I suggest is that she gets in the witness box, reveals her face to you your Honour and any other women in the Court, and the men look the other way.

SPARTALIS: We're content with that.

JUDGE AUDREY BALLA: For the whole of her evidence?

EVATT: What?

BALLA: For the whole of her evidence?

EVATT: No. Only for when she's been sworn in, your Honour.

BALLA: I don't know if I'm happy with that. Are you proposing that she would have her face covered while she's giving evidence and being cross-examined?

EVATT: I'm afraid so. Yes. It's not very satisfactory, your Honour, but it's something we have to live with.

BALLA: It's not something I have to live with. Do either of you have something to say about that?

SPARTALIS: Your Honour, 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. That's what I understand. We're in your Honour's hands, of course, but our preference is that this witness give her evidence the normal way.

BALLA: It's certainly mine as well, and I can't imagine how you could not look at her during the whole of her evidence.

 

Moutia Elzahed claimed it was "not fair" she was not allowed to give evidence.

EVATT: Your Honour, I've got to correct something-

BALLA: I can't imagine how you could not look at her during the whole of giving evidence.

SPARTALIS: It would be impossible, your Honour, because remarks will result in responses.

EVATT: Your Honour, I have to correct it. She wants her face concealed for the whole of her evidence, I misunderstood. I just thought it was for the swearing in. It's for the whole of the evidence. Your Honour, I've read about this, but this is the first time that I've experienced it, and I don't know what has happened in other courts. I have no idea.

BALLA: Mr Staehli, do you want to say anything?

DAVID STAEHLI SC, COMMONWEALTH LAWYER APPEARING FOR THE AFP: I've got nothing to add, your Honour. No. It's deeply unsatisfactory from every perspective but it's a bit hard to identify what the alternative is. It's a matter for your Honour, plainly.

EVATT: Your Honour, it's not often I agree with Mr Spartalis, but it's difficult to-

BALLA: To what?

EVATT: There are difficulties if the face is concealed in my opinion.

BALLA: Yes. Particularly in this case where I assume I will need to make findings based on demeanour and I don't know what other matters would be relevant. That would be a very important matter. And I have raised it also in relation to giving evidence by telephone. I mean, it raises exactly the same issue.

EVATT: Can I get some instructions about that?

BALLA: Yes. I'll take a short adjournment. I mean, if we did raise it all at 10 o'clock so that we wouldn't be wasting time now, but I'll adjourn and just to make-

EVATT: Just a few minutes, your Honour.

BALLA: Just before I do adjourn, just to make my position plain, you have to come up with an additional argument to be able to persuade me that it could be appropriate for her to give evidence. Being her examination-in-chief and cross-examination, with her face covered.

SHORT ADJOURNMENT

EVATT: Your Honour, I'll have to resolve this matter by calling the first plaintiff and we'll see what happens. I'm not terribly optimistic.

BALLA: I have no idea what that means. What are you suggesting?

EVATT: I'm suggesting that it may be short lived, but I have to call her to start with. I can't not call her. I have to call her as a witness and see what then transpires, I suppose.

BALLA: Are you telling me from the bar table that she's going to refuse to remove her face covering?

EVATT: They're my instructions, your Honour.

BALLA: Then there's no point in calling her. I'm not going to start having a tussle with your client about the issue.

EVATT: I need to say I am instructed that for religious reasons-

BALLA: I understand the reason, and I've told you my reason.

EVATT: Yes. But can I get the reason on Court record, that's all. I'm instructed that she's of the Muslim religion, and it's against her religion to reveal her face to men, although not to women, and therefore, I'm instructed she will not remove her veil. If that's the correct expression, or whatever it is. Just before Your Honour rules on that, I can't see much difference between that and giving evidence on the telephone, and I have an application to call the second plaintiff by telephone. Dealing with one issue first, I think your Honour has said that your Honour would not permit the first plaintiff to give evidence whilst veiled, so we can't see her face. I ask your Honour to permit that evidence, and then my instructions are if your Honour won't permit her to give evidence that way, I won't call her.

I'm sorry I can't help your Honour in this matter, but I haven't struck it before and I'm not too sure what the position is.

SPARTALIS: Your Honour, I just want to correct what my friend said. My friend just said your Honour will not the plaintiff to give evidence. As I understand it, your Honour is permitting the first plaintiff to give evidence, and all your Honour is requiring is that the first plaintiff comply with normal practice within the confines of this Court. Your Honour has raised correctly the issue of demeanour. It's an important issue in these proceedings. It is an important issue and we would urge your Honour to insist that the first plaintiff comply with the rules of this Court and give evidence in the normal fashion. They are my submissions, your Honour.

EVATT: The only think I'd like to add is, and I'm in your Honour's hands in this, I thought the witness should do this in the witness box, that's all.

BALLA: Did you want to say anything else, Mr Staehli?

SPARTALIS: The other remaining issue, of course, is that the scarce resources of this Court have been set aside for three weeks, and both the first and the second defendant have prepared for this hearing, and for this hearing to proceed, having the normal preparation and witnesses prepared. We would be very concerned, of course, if the matter didn't proceed for any reason, but, Your Honour, that's as high as I can put that. I think your Honour understands that-

BALLA: No.

SPARTALIS: We don't want the matter to just stop, if I can put it that way. We would like it to proceed.

EVATT: It's not going to stop. I didn't say it was going to stop.

SPARTALIS: In that case, I'll sit down.