An Australian judge has rejected a request from a Muslim woman wearing a niqab, while the evidence in a claim for damages against the police, where she claims that the officers attacked her during a RAID on her house.
On Tuesday, the New South Wales district court judge Audrey Balla decided, on a request from Moutia Elzahed wear their niqab, while the evidence for the court, in which, what by one of the first decisions of its kind in Australia.
Balla offered a number of alternatives to Elzahed, also, that the court, to the exclusion of the public, or that they give evidence of accepting the in a distant room, but she refused that alternative, because it is still male legal representatives in the room would.
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The Problem was first by Elzahed Council, Clive Evatt, during the hearing on Tuesday. The case concerns the implementation of the NSW police during a RAID on Elzahed house in September 2014 as part of the joint counter-terrorism operation Appleby. Elzahed husband, Hamdi Alqudsi, was convicted of supporting terrorism in September 2016 for the support to recruit Australians to fight in Syria.
Evatt told the court: “I am instructed that you are of the Muslim religion, and it is reveal against your religion to your face to men, although they are instructed not to women, and therefore I am, she will not remove the veil, if that is the correct term, or whatever it is.
“Shortly before your honor rules, I may not be much of a difference between, and give instructions on the phone.”
He told the court that it was the “first time I’ve experienced” and that he was unclear how other courts of similar questions had been investigated. He acknowledged that “there are difficulties, if the face is hidden, in my opinion”.
The lawyer of the New South Wales police, Michael Spartalis, said it was their preference, the evidence you gave, without your face covered.
“Facial expression is a very important part of the what is a proof and as I understand it, it is in these courts in New South Wales, at least in my understanding, or recollection, was that, if you are here, you have to show your face,” he said.
In the decision, Balla said: “It is my role to ensure that there is a trial version that will suit everyone. I must balance, on the one hand, the need to the attention of the first plaintiff, the religious beliefs of In this case, these beliefs mean that you can choose not to testify, which in turn has a negative impact on the successful prosecution of your case.
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“On the other hand, I must consider whether I would be hindered my ability to fully assess the reliability and credibility of the evidence of the first plaintiff, if I can not afford the possibility of being able to see her face when she makes a statement.
“I am well aware that the attitude of a witness and the view of her face is not the only way in which credibility is assessed. In some cases, the appearance of a witness may be misleading. However, none of these considerations can mean, in my view, that I have withdrawn completely, to see that the assistance, to assess your face, and your credibility.”
The decision Elzahed against the police can make it difficult, in the absence of any evidence from her about the circumstances of the raid. But the decision to exclude their testimony could provide later a possible reason for the judicial review of the New South Wales supreme court.
The wife, the son, Abdullah, George, gave evidence on Tuesday, where he allegedly told his mother that they were attacked during the raids.
He told the court: “When my mom walked up to me, she sat down and she explained to me that you punched her in the face, and then she explained, while she tried to cover herself and – while holding the blanket over her body, because she was, as she was not really impressed with that – as soon as you refused to take the ceiling for the man who came at the beginning of the raid, he hit you.”
He continued: “My mother said that she wanted to see her naked, and she held the blanket so that you don’t remove it, and you also said that you broke the door, and she asked why. She says, ‘why did you break the door?’.”
The NSW police and the Australian Federal police, both parties to the action, denied misconduct in the case.
The conditions in which Muslim women wear has to testify with the niqab, was the subject of considerable debate in countries overseas.
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A lengthy legal dispute in Canada in the year 2012, arose after a woman who claims she was sexually assaulted, rejected, the evidence against the defendant, unless she was able to wear the niqab for the duration of their evidence.
Canada’s Supreme court finally ruled that the trial judge had not adequately taken into account, the woman is the religion.
The chief justice of the court, Beverley McLachlin, wrote in its decision: “A secular response that requires witnesses to park their religion in the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified.”
She continued: “On the other hand, a response that says a witness can always be covered to testify with her face, can really render a study by Unger and lead to a false conviction. What is needed is an approach that is a balance between the vital rights of fairness, the protection of freedom of religion and attempt conflicts if you can.”
But the reasoning of the court was split, it has made contouring difficult the circumstances in which face-coverings may or may not be worn clear.