A Muslim woman who was banned from giving evidence in a Sydney court while wearing a niqab has lost her appeal against the trial judge’s decision that she needed to see the witness’s face to help determine if she was telling the truth.
Moutia Elzahed, who’s married to jailed Islamic State extremist Hamdi Alqudsi, tried unsuccessfully to sue the state and federal governments over claims of police violence during a 2014 raid on their Sydney home.
During the District Court trial in 2016, the female judge refused to allow Elzahed to give evidence while her face was covered.
The now 50-year-old woman argued that for religious reasons she wouldn’t reveal her face to men.
But no application was made at the time by Elzahed’s lawyer for her to give evidence by alternative means such as from behind a screen.
In dismissing her appeal on Friday, the NSW Court of Appeal found the trial judge needed to see Elzahed’s face when she was giving evidence.
“The appellant’s evidence was strongly contentious,” the appeal court ruled.
“The resolution of the case would require the primary judge to make findings about whether to accept the appellant’s evidence or the conflicting evidence of the NSW police officers.
“Viewing the appellant’s face while she was giving her evidence was capable of affecting the resolution of that conflict.”
Judge Audrey Balla in mid-2017 ordered Elzahed pay $250,000 in costs to the commonwealth and state governments responsible for the federal and state police officers involved in the 2014 raid.
In early May, Elzahed became the first person in NSW to be found guilty of refusing to stand for a judge in court after insisting she only stood for Allah when she appeared before Judge Balla.
She defiantly remained seated once again as a magistrate delivered the landmark decision and outside court later gave the Islamic State one-finger salute.