Moutia Elzahed & Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 327

District Court New South Wales

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 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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.