The tilt of an Islamic terrorist tried to force the judge to grant consent to let her wear her hideous Islamic shrouds, which cover everything including her face. She claimed anything less would be “oppression”. Here we have a judge who didn’t budge. Ironic that “(the woman) is under no legal compulsion to attend court.”
The wife of an accused terrorist has been banned from wearing an Islamic veil, or niqab, in the public gallery of the Victorian Supreme Court, with a judge ruling spectators must have their faces uncovered.
The woman made an application to wear a niqab during the trial of her husband, who with two co-accused is charged with conspiring to plan a terrorist attack in Melbourne’s CBD last Christmas. He will stand trial next week.
Judge Christopher Beale previously prevented a woman in a burka from entering his court. “I require anybody who comes into the court, and all are welcome, but anybody who comes into the court, for their face to be uncovered,” he said in February.
Lawyers for the wife of the accused made an application to vary Justice Beale’s previous order, arguing it was oppressive.
In a judgment handed down on Monday, Justice Beale rejected her application and ruled that people in the public gallery should have their faces uncovered in order to deter them from possible misbehaviour.
“While it is rare for physical violence to erupt, it is not so rare that things are said by spectators in the public gallery which should not be said,” he said.
Justice Beale said comments to other spectators, to witnesses, lawyers, even to the judge and jurors, may sometimes cause a mistrial and the court needed to minimise the occurrence of such incidents.
“Spectators whose faces are uncovered are likely to appreciate that if they misbehave, it will not be too difficult to establish their identity, even if they manage to get away from the court,” he said.
“Deterrence, identification and proof are all served by a requirement that spectators in the public gallery have their faces uncovered.
“The efficacy of an order for witnesses out of court is also facilitated by such a requirement.
“Once there are multiple spectators in the public gallery wearing niqabs and traditional Islamic dress, working out who was who if something happened in court might not be a simple matter, especially as such dress tends to be very similar.”
Justice Beale said he had considered the woman’s right of religious freedom and her right to participate in public life and the fact that the niqab was a “fundamental way in which (the woman) observes her faith”.
However, he said his orders did not force anyone to “act immodestly”.
“First, the exposure of one’s face in a courtroom cannot reasonably be viewed as an immodest act: subjective views to the contrary cannot rule the day, or the management of a courtroom,” he said.
“Second, if someone feels strongly that it would be improper for them to uncover their face in court, they can choose not to attend.”
He said arrangements could be made for the trial to be live-streamed to a remote facility if the woman chose not to attend.
Justice Beale said it would be “undesirable and discriminatory” to segregate spectators wearing niqabs or arrange for extra security staff to sit near them to monitor them.
“Such measures would, in my view, be more restrictive of rights than a requirement that spectators have their faces uncovered,” he said.
The woman’s lawyers referred Justice Beale to the NSW case of Moutia Elzahed, who claimed police assaulted her family during a terrorism raid.
The judge refused permission for Ms Elzahed to give evidence with her face covered, finding the covering would impede the court’s ability to assess her credibility and reliability.
The NSW Court of Appeal found the District Court judge Audrey Balla made no error in her ruling and had in fact raised possible alternative methods for Ms Elzahed to give evidence. “Those alternative methods were rejected by the appellant,” the court said.
Lawyers for the woman subject to yesterday’s judgment also referred Justice Beale to a New Zealand case where two prosecution witnesses wished to wear niqabs while giving evidence.
The judge ordered the witnesses remove their niqabs but set up screens in the court to shield the witnesses’ faces from all but the judge, counsel and female court staff.
An English judge allowed an accused to wear a niqab except when she was giving evidence.
Justice Beale said there was at least one point of distinction between these cases and the current one.
“An accused is compelled to be present in court and, more often than not, witnesses for the prosecution are subpoenaed to attend court,” he said.
“(The woman) is under no legal compulsion to attend court.”
He said the fact the woman and others were permitted to wear their niqabs in the public gallery at the committal proceedings before a magistrate did not mean that they should be allowed to do so at a trial before a judge and jury, where different considerations came into play.
He accepted that the wife wanted to support her husband and was willing to show her face to security staff, but he said security was “more than just a matter of identification”.
Justice Beale said open justice, religious freedom and the right to participate in public life were fundamental values.
“But no one could sensibly claim that these principles and rights brook no limitations,” he said.
“Australia is obviously a multicultural society and I agree that religious dress should be accommodated as much as possible, but the right of religious freedom and the right to participate in public life are not absolutes.”
Justice Beale said the Victorian Charter of Human Rights allowed for limitations.
“I consider it a reasonable limitation ‘demonstrably justified in a free and democratic society based on human dignity, equality and freedom’ to require spectators in the public gallery to have their faces uncovered,” he said.