The Facts

Ms Elzahed was one of the plaintiffs in a civil action for damages for assault and battery, flowing from a police raid on her home. In the course of the trial in the District Court of NSW, before her Honour Balla DCJ, Ms Elzahed’s counsel unexpectedly announced that his client would not be removing her niqab (a veil that covered all of her face except her eyes) when testifying. It seems that the reason for her decision was that she believed, as a Muslim woman, that her face should not be seen by men outside her family. A number of suggestions were made by different participants in the trial as to how Ms Elzahed’s concerns could be addressed. One of the lawyers suggested that evidence could be given from behind a screen, allowing the judge (who was female) to see the witness’ face, but not other male courtroom participants. But this suggestion was not adopted by Ms Elzahed- see para [16]. At para [18] the Court of Appeal then related two other expedients that were suggested by Balla DCJ, neither of which was accepted:

The first was that the appellant’s evidence could be given while she was in a remote room, the appellant’s face would be uncovered but she could choose not to see who was watching her give evidence. The second was that the court would be closed so that only the lawyers involved in the proceedings would be in court and see the appellant giving evidence. Mr Evatt [counsel for Ms Elzahed] responded to these suggestions “that is very sound” and that he would take instructions. Counsel for the respondent and the Commonwealth did not oppose either of the two courses suggested by the primary judge. After a further short adjournment, Mr Evatt informed the Court that he could not get instructions to agree to either course and that the appellant’s instructions were that she refused to give evidence with her face uncovered.

The Trial Judge’s ruling

In the end, then, the judge ruled that Ms Elzahed would not be allowed to testify. Her short, on the spot, reasons sum up the issues admirably, in my view (quoted at para [19]):

“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… 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.”

Ms Elzahed was the plaintiff in the case; she had the onus of proving her case on the balance of probabilities; but to prove her case the judge needed to be satisfied that she was telling the truth. In the end, having declined other accommodations that may have taken her concerns into account, the judge was forced to hold that she would not be allowed to testify when her testimony could not be properly assessed by the ordinary criteria used by the courts every day.

The Appeal Decision

The Court of Appeal held that the challenge to the trial judge’s ruling did not succeed. The judge’s decision was a discretionary one exercised in the course of a trial, and for it to be challenged it would have to be shown that some material factor that should have been considered was ignored, or that in some other way a conclusion had been reached which was “unreasonable or plainly unjust” (from [27]). To the contrary, the Court of Appeal found that Balla DCJ had approached the relevant issues correctly and had done her best to accommodate the appellant’s desires while doing justice to the parties. Her Honour did not fall into the error of supposing that the “demeanour” of the witness was the only matter relevant to assessing the witness’ credibility. But she was entitled to regard this issue as “an important factor in assessing credibility”- see para [47]. At one point it had been suggested that the Court should take into account, by “judicial notice”, the fact that there are “a group of women in Australian society who have strongly held religious beliefs that would not permit them in any circumstances to expose their faces in a courtroom”. The Court said at [63] that even if this matter were to be relevant, it needed to be proved by appropriate evidence, and could not just be assumed to be generally true. The Court also noted that Balla DCJ’s ruling was not out of step with other courts in the common law world, at [65]:

The appellant did not identify any case in the common law world in which a witness (let alone a party) has been permitted to give contested evidence while wearing a niqab. To similar effect, in a recent article (Barker R, “Burqas and Niqabs in the Courtroom: Finding Practical Solutions” (2017) 91 ALJ 225) the author stated, at 234, that: “While…there are circumstances where a woman may appear in court with her face covered, in all of the cases considered in this article the witness has ultimately been ordered to remove her veil in order to give evidence.”

(Dr Barker, quoted here, was a speaker at the 2015 “Freedom for Faith” conference held at Newcastle University, where she spoke about the Islam and religious freedom, including the issues of head coverings. Her presentation can be viewed here.)

General Implications of the Decision

As the Court of Appeal is at pains to note, this is not a general decision about the religious freedom of Muslim women in courts. Indeed, they do note in passing that were they ruling on the wider issues, they would have spent some time discussing an important document, cited at para [7]:

An indication of the material which may have gone to that issue is provided by the Explanatory Note on the Judicial Process and Participation of Muslims, published in December 2017, by the Australian National Imams Council which opines that it is not contrary to Sharia law for a woman to uncover her face when giving evidence in court.

The case does, however, bring to mind these broader issues. There is no doubt that some Muslim women (whatever the Imams Council may say) may indeed have a genuine religious objection to giving testimony before men with faces uncovered. The right response for the courts to make is not to ignore those objections, or to belittle the women concerned, but to make a genuine effort to accommodate the objections, while not seriously undermining the important values of fact-finding in a court of law. Here it is clear that there were a number of serious efforts made to accommodate the views of Ms Elzahed. But it is hard to disagree with the conclusions reached by the Court of Appeal in para [69]:

Even if we were persuaded that error had been established for any reason other than that the appellant was not permitted to give evidence wearing her niqab, this is not a case where any substantial wrong or miscarriage was thereby occasioned… This is because it is clear on all the evidence now available that whatever the proposal, the appellant would have refused to give evidence at the trial other than while than wearing her niqab.

(While the Court was referring to the events of the relevant civil trial, it may not be irrelevant to note that their conclusion seems to be borne out by the fact that Ms Elzahed was recently the first person to be convicted under new NSW legislation making it a criminal offence not to stand in court to show respect for a judge.) It seems to me that the decision here reflects a reasonable balance of respect for religious freedom, with the needs of justice. Our legal system has long relied on observation of a witness’ demeanour when giving evidence, as one of the tools used to determine the truth of a matter. So long as opportunities to testify are provided that are consistent with the best fact-finding possible, it should usually be possible to respect both goals. But it is worth noting, on the day that the report of the Ruddock Panel into Religious Freedom has apparently been delivered to the Federal Government, that while the correct outcome has been reached, the court was not formally required to consider any issues raised by religious freedom. No law of either NSW or the Commonwealth directly provides for protection of religious freedom. Such laws also, of course, will need to consider the appropriate limits to such freedom, which seem to be well illustrated here: that genuine religious beliefs should be recognised and accommodated as much as possible, while preserving fundamental social values such as the need for the judicial system to act on the truth. And speaking of issues about the limits of religious freedom: that excellent organisation Freedom for Faith is running another conference next week, Freedom18, and the overall theme of the day is: “The Limits of Religious Freedom“. To be held at the NSW Parliament, on Wednesday May 23, it should be a great day. I am planning to be there, and anyone  interested in religious freedom issues would find it worthwhile. I think there are some tickets left, but you may need to be quick!