Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Elzahed v State of New South Wales [2018] NSWCA 103
• Hearing dates: 30 April 2018
• Date of orders: 18 May 2018
• Decision date: 18 May 2018
• Before: Beazley P, Ward JA and Payne JA at [1]

Decision

(1) Leave to amend the notice of appeal to add ground 12 granted; (2) Appeal dismissed; (3) Appellant to pay the costs of the respondent of the appeal as agreed or assessed.

• Catchwords: CIVIL PROCEDURE – whether party can give evidence while face covered by veil – discretionary decision of trial judge to refuse to allow witness to give evidence with face covered
• Legislation Cited: Civil Procedure Act 2005 (NSW); Criminal Procedure Act 1986 (NSW); Evidence Act 1995 (NSW); Uniform Civil Procedure Rules 2005
• Cases Cited: Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84; House v The King (1936) 55 CLR 499; [1936] HCA 40; R v Lodhi (2006) 65 NSWLR 573; [2006] NSWCCA 101; BUSB v R (2011) 80 NSWLR 170; [2011] NSWCCA 39; Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52; Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42; Police v Razamjoo [2005] DCR 408; R v NS [2012] 3 SCR 726; Scott v Pauly (1917) 24 CLR 274; [1917] HCA 60; The Queen v D (R) [2013] EW Misc 13 (CC); Western Australia v Ward (1997) 76 FCR 492; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9
• Texts Cited: Australian National Imams Council, Explanatory Note on the Judicial Process and Participation of Muslims, December 2017
• Category: Principal judgment
• Parties: Moutia Elzahed (Appellant); State of New South Wales (Respondent)
• Representation: Counsel: J K Kirk SC (Appellant); D Kell SC / M Spartalis / M Pulsford (Respondent); Solicitors: Zali Burrows at Law (Appellant); Crown Solicitor’s Office (Respondent)
• File Number(s): 2017/11490
• Publication restriction: None

Decision under appeal

• Court or tribunal: District Court of New South Wales
• Jurisdiction: Civil
• Citation: [2016] NSWSC 327
• Date of Decision: 29 November 2016
• Before: Balla DCJ
• File Number(s): 2014/305851

 

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, along with three family members, commenced proceedings in the District Court for damages arising out of the execution of a search warrant at their home in 2014. The claim at trial essentially involved allegations of assault and battery by unspecified police officers. On the appellant’s case, the alleged assault occurred when she was alone in her bed and NSW police officers first entered the premises.

This appeal concerns the circumstances in which the appellant did not give evidence before the primary judge. On the second day of the hearing, counsel for the appellant, apparently without any prior notice, told the primary judge that he intended to call the appellant to give evidence with her face (other than her eyes) fully covered by a veil known as a niqab. Counsel for the respondents at the trial made various suggestions about how the issue raised by the appellant could, perhaps, be addressed. The only reference to the appellant being permitted to give evidence from behind a screen, as sometimes occurs in cases with national security implications, fell from a suggestion made by counsel appearing for the Commonwealth. That suggestion was not adopted by the appellant and her Honour was not asked to rule on such a proposal.

The primary judge declined the appellant’s application to give evidence wearing the niqab. The issue on the appeal was whether the primary judge’s discretionary decision to reject the appellant’s application to give evidence while wearing a niqab was affected by error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40.

The Court (Beazley P, Ward and Payne JJA) held at [2], [26]-[27] and [33]-[35], dismissing the appeal:

When a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on the party who contends on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they were fundamental and obvious. The alternative approach would permit a party to run one case before the primary judge and different cases on appeal.

Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120]-[121] applied.

No application was made at the trial by the appellant to be permitted to give evidence by some alternative means, such as from behind a screen. It was neither fundamental nor obvious that the appellant was seeking to be permitted to give evidence by some alternative means. The appellant has not demonstrated that the matters about which she now complains were drawn to the attention of the primary judge or that those matters were fundamental and obvious. The grounds of appeal raising matters not relied upon before the primary judge should be rejected for that reason.

There was no error in the primary judge’s ruling that the appellant could not give evidence with her face covered by a niqab. The appellant was a party in the case, not merely a witness. The appellant’s evidence was strongly contentious. 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. The primary judge did not err in concluding that fairness to all parties required her to reject the appellant’s application.

Judgment

1. THE COURT: While the grounds of appeal and submissions in this case ranged over many issues, it should be understood at the outset that the only decision Balla DCJ was asked to make was whether, in the exercise of her Honour’s discretion, the appellant should be permitted to give evidence in a case she and other members of her family had commenced in the District Court with her entire face, other than her eyes, covered by a veil known as a niqab. The decision to reject that application was a discretionary decision. To succeed in challenging that decision the appellant must demonstrate that the decision was affected by error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40.

2. When a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on the party who contends on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they were fundamental and obvious. The alternative approach would permit a party to run one case before the primary judge and different cases on appeal: Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120]-[121].

3. No application was made at the trial by the appellant to be permitted to give evidence by some alternative means, such as from behind a screen. It was neither fundamental nor obvious that the appellant was seeking to be permitted to give evidence by some alternative means. The appellant has not demonstrated that most of the matters about which she now complains were drawn to the attention of the primary judge or that those matters were fundamental and obvious. The grounds of appeal raising matters not relied upon before the primary judge should be rejected for that reason.

4. It is true, as senior counsel for the appellant submitted, that Australian legislatures and Australian courts have shown themselves to be flexible and innovative in addressing novel questions about ways in which evidence can be given by a witness. Examples include such things as “gender specific evidence” in native title cases (Western Australia v Ward (1997) 76 FCR 492), the use of screens in cases involving evidence having national security implications (R v Lodhi (2006) 65 NSWLR 573; BUSB v R (2011) 80 NSWLR 170) and the use of remote video facilities in relation to evidence from victims in sexual assault cases (s 294B of the Criminal Procedure Act 1986 (NSW)).

5. It is worth noting at the outset what this case is not about. Despite it being raised by counsel for the Commonwealth at trial as a possible way of proceeding, no application was made for evidence to be given from behind a screen so that the appellant’s face was visible to some but not all people in the courtroom. Despite Balla DCJ suggesting it as an option, no application was made for evidence to be given from a remote room via video (where the appellant’s face would be visible to some or all people in the courtroom) as regularly occurs in sexual assault cases. Despite Balla DCJ suggesting it as an option (alone or in combination with remote video evidence), no application was made to close the courtroom to members of the public whilst the appellant gave her evidence. Any ruling from this Court about whether any particular alternative method was or is permissible, including any limits placed on the giving of that evidence in a particular case, should await a case in which an application to adopt one of those methods was made to a trial judge.

6. The case conducted before Balla DCJ was not about the permissible courtroom attire of women of Islamic faith, or women of other faiths more generally. That topic was not raised by the appellant at the trial. No evidence was led before the primary judge and no submission was made at the trial that the decision had any broader implications for women of Islamic faith, or women or other faiths more generally. The appellant’s invitation to this Court to take judicial notice under s 144 of the Evidence Act 1995 (NSW) of wider implications for women of Islamic faith should be rejected.

7. To succeed the appellant needs to demonstrate House v The King error in Balla DCJ’s discretionary decision. That decision was based on an application by one woman to give evidence in a case she herself had commenced in the District Court, while wearing a veil which covered her entire face except her eyes. It was not an error in the House v The King sense to fail to take into account a matter which was not raised before her Honour and which, had it been raised, would likely have been contested. 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.

8. The matters which were drawn to the attention of Balla DCJ were dealt with by her Honour carefully and fairly to all parties. No error has been shown in Balla DCJ’s discretionary decision.

Background facts

9. The facts in this case are uncontroversial and may be stated briefly. The proceedings in the District Court involved a claim for damages, brought by four plaintiffs, arising out of the execution of a search warrant at their home on 18 September 2014. The execution of the warrant was part of a joint operation between the NSW Police Force and the Australian Federal Police, involving the simultaneous execution of a number of search warrants throughout NSW which were terrorism-related. Seven NSW Police officers entered the appellant’s home and secured the premises; thereafter Australian Federal Police officers entered and searched the premises. The execution of the search warrant was video recorded by the Australian Federal Police. The proceedings on appeal involved only the appellant and the State of New South Wales, being vicariously liable for the NSW police involved in the case. The appeal proceedings involving the remaining plaintiffs and the Australian Federal Police have each been settled.

10. The claim at trial brought by the appellant essentially involved allegations of assault and battery by unspecified police officers. On the appellant’s case, the alleged assault occurred when she was alone in her bed and NSW police officers first entered the premises.

11. At the trial, the appellant did not give evidence. The third plaintiff, her younger son, who was then on remand for terrorism charges, also did not give evidence. The second plaintiff (the appellant’s husband) gave evidence by audio visual link, he being in custody following his conviction for foreign incursion offences. The fourth plaintiff, the appellant’s older son, aged 17 at the time of the hearing, also gave evidence. Five NSW police officers gave evidence. Three of those officers gave evidence directly relevant to the appellant’s claim.

12. The hearing took place over six days between 28 November and 7 December 2016. Balla DCJ delivered a reserved judgment on 15 December 2016. Her Honour held that none of the plaintiffs’ claims were established as against the respondent or the Commonwealth. Her Honour found that each of the police officers had formed a genuine suspicion, based on reasonable grounds, that the occupants of the house may have been involved in acts of terrorism and may have weapons.

13. Balla DCJ found that the relevant NSW police officers had used reasonable force when dealing with the appellant in her bedroom, and that the appellant had not established that she had been punched in the ear, eye or head so that her ear bled, nor had she been handcuffed, and nor had she been mentally and physically abused. The primary judge, in reaching these conclusions, referred to the absence of evidence from the appellant, her difficulty in reconciling the evidence of the second and fourth plaintiffs with the search warrant video recording, the absence of any medical reports or notes corroborating the appellant’s claims in the pleading, and the absence of any reliable corroborative evidence from the second and fourth plaintiffs.

14. The primary judge accepted the evidence of the three relevant NSW police officers that they had not punched the appellant in the ear, eye or head so that her ear bled, nor had they handcuffed her or otherwise mentally or physically abused her. Her Honour found that the NSW police officers used reasonable force when dealing with the appellant in her bedroom. Her Honour entered verdicts for the respondent (and the Commonwealth) against the appellant and the remaining plaintiffs.

15. This appeal concerns the circumstances in which the appellant did not give evidence before the primary judge. On 29 November 2016, the second day of the hearing, Mr Evatt, then counsel for the appellant, apparently without any prior notice, told the primary judge that he intended to call the appellant to give evidence with her face (other than her eyes) fully covered by a niqab.

16. Counsel for the respondent and the Commonwealth at the trial made various suggestions about how the issue raised by the appellant could, perhaps, be addressed. The only reference to the appellant being permitted to give evidence from behind a screen, as sometimes occurs in cases with national security implications, fell from a suggestion made by Mr Staehli SC, appearing for the Commonwealth. That suggestion was not adopted by the appellant and her Honour was not asked to rule on such a proposal.

17. Mr Evatt candidly, and quite properly, told the primary judge that “[t]here are difficulties if the face is concealed in my opinion”. Her Honour permitted a short adjournment to allow Mr Evatt to obtain further instructions. After the adjournment, Mr Evatt said he was instructed that, for religious reasons, the plaintiff would not reveal her face to men and he was instructed “she will not remove her veil”. After hearing further from the parties, her Honour further adjourned until after the lunch break to allow further consideration of the matter.

18. After the luncheon adjournment, Balla DCJ raised two courses that could be adopted in the circumstances, either alternatively or cumulatively. 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 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. Mr Evatt sought to call the appellant wearing her niqab which covered her entire face but which allowed her eyes to be seen. This was the only application ruled upon by Balla DCJ.

19. Balla DCJ proceeded to deliver a short ex tempore judgment on the appellant’s application to give evidence wearing the niqab. Her Honour stated that, as is uncontroversial, there would be a conflict in the evidence the appellant proposed to give and that of the NSW police officers. Her Honour briefly referred to the other courses she had proposed to the appellant, but which had been rejected. Her Honour concluded:

"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.”

The notice of appeal

20. Leave to appeal was granted by a Court comprising Payne JA and Sackville AJA, principally on the basis that the question of whether a party should be permitted to give evidence wearing a niqab had not been the subject of appellate consideration in this State and experienced trial counsel before Balla DCJ were not in a position to assist her Honour about the question by reference to relevant authority.

21. In granting leave, the Court permitted the appellant to amend the draft notice of appeal to reflect the arguments sought to be advanced by the appellant in oral submissions. It is regrettable that after leave to appeal was granted, at which time the Court encouraged the appellant to focus an amended notice of appeal closely upon the matters argued on the leave application, instead, the notice of appeal grew to encompass 11 grounds of appeal including multiple sub-grounds. In making those criticisms we do not intend to reflect in any way on Mr Kirk SC who appeared for the appellant before us, having received the brief at a late stage, and whose submissions were of considerable assistance to the Court. The grounds of appeal were:

“1.   The trial judge erred in:

a. failing to permit the appellant to give evidence in a niqab;

b. failing to permit the appellant to give evidence via another method, such as a screen, that revealed her face to women but not to men (“an alternative method”); or

c. failing to accede to the appellant’s application to give evidence in a manner that revealed her face to women but not to men.

2.   In ruling that the appellant could only give evidence with her face uncovered (“ruling”), the trial judge erred in failing to have regard to and in failing to apply the test imposed by s 8 by reference to ss 6, 7, 9, 11 and 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

3.   In making the ruling, the trial judge erred in failing to have regard to and in failing to apply rr 2.1 and 2.3(k)-(l) of the Uniform Civil Procedure Rules 2005 (NSW).

4.   In making the ruling, the trial judge erred in failing to have regard to and in failing to apply the general law test governing the District Court’s power to make orders for the giving of evidence in a manner that impacts upon the principle of open justice – particularly by failing to consider whether such orders were necessary for the proper administration of justice.

5.   In making the ruling, the trial judge erred in making the following findings of material fact:

a.    The trial judge would be impeded in her ability to assess the reliability and credibility of the appellant’s evidence if her Honour could not see the appellant’s face whilst the appellant gave evidence (TJ [5]); and/or

b.   To assess the weight to be given to the appellant’s evidence, the trial judge needed to see the appellant’s face whilst the appellant gave evidence (TJ [7]).

6.   In making the ruling, the trial judge erred in failing to find the following material facts:

a. The respondent’s counsel did not formally object to the appellant’s giving evidence with her face covered;

b.   The respondent’s counsel stated, in response to counsel for the appellant’s suggestion that “she gets in the witness box, reveals her face to [Balla DCJ] and any other women in the Court, and the men look the other way”, that “We’re content with that”;

c.   Counsel for the first defendant (“Commonwealth”) did not formally object to the appellant’s giving evidence with her face covered;

d.   The Commonwealth’s counsel suggested that the appellant “could give evidence in some way with a screen, which revealed her presence to [Balla DCJ] but not to counsel”;

e.   After the Commonwealth’s counsel made the suggestion described in paragraph (d) above, the respondents’ counsel did not formally object to that course;

f.   The appellant’s evidence was critically significant to her case;

g.   The respondent and the Commonwealth would have suffered no undue prejudice if the appellant gave evidence:

i.   In a niqab; or

ii.   Via an alternative method;

h.   It was inconsistent with the proper administration of justice and necessary to do justice in the present case to permit the appellant to give evidence:

i.   In a niqab; or

ii.   Via an alternative method;

i.   The trial judge was able to make findings about the appellant’s demeanour even if the appellant gave evidence:

i. In a niqab; or

ii. Via an alternative method;

j.   It would not have unduly interfered with the trial judge’s capacity to make findings about the appellant’s credibility if the appellant gave evidence:

i.   In a niqab; or

ii. Via an alternative method.

7.   In making the ruling, the trial judge erred in failing to take into account material considerations, particularly the following:

a.    The respondent’s counsel did not formally object to the appellant’s giving evidence with her face covered;

b.    The respondent’s counsel stated, in response to counsel for the appellant’s suggestion that “she gets in the witness box, reveals her face to [Balla DCJ] and any other women in the Court, and the men look the other way,” that “We’re content with that”;

c.   The Commonwealth’s counsel did not formally object to the appellant’s giving evidence with her face covered;

d.   The Commonwealth’s counsel suggested that the appellant “could give evidence in some way with a screen, which revealed her presence to [Balla DCJ], but not to counsel”;

e.   After the Commonwealth’s counsel made the suggestion described in paragraph (d) above, the respondents’ counsel did not formally object to that course;

f.   The appellant’s evidence was critically significant to her case;

g.   The appellant stood to lose her case unless she gave evidence;

h.   The respondent and the Commonwealth would have suffered no undue prejudice if the appellant gave evidence:

i.   In a niqab; or

ii.   Via an alternative method;

i.   Permitting the appellant to give evidence:

i.   In a niqab; or

ii.   Via an alternative method;

j.   The trial judge was able to make findings about the appellant’s demeanour even if the appellant gave evidence:

i.   In a niqab; or

ii.   Via an alternative method;

k.   It would not have unduly interfered with the trial judge’s capacity to make findings about the appellant’s credibility if the appellant gave evidence:

i.   In a niqab; or

ii.   Via an alternative method;

l.   The significance of broader aspects of the administration of justice beyond the parties’ private interests, including the prospect that failing to permit the appellant to give evidence in a niqab or via an alternative method would:

1.   Deter Muslim women from giving evidence in court proceedings;

2.   Deter Muslim women from making complaints to the police;

3.   Deter Muslim women from cooperating with police investigations;

4.   Deter Muslim women from instituting civil proceedings;

5.   Deter Muslim women from instituting criminal proceedings;

6.   Increase the risk of marginalisation of Muslim women in respect of the administration of justice;

7.   Inhibit Muslim women from exercising the right to seek access to the courts (see, eg, Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 315-316, 319).

8.   The trial judge’s decision not to permit the appellant to give evidence with her face covered was unreasonable and plainly unjust.

9.   The trial judge erred in failing to accord due weight to the following matters:

a.   The importance of “demeanour”;

b.   The fact that her Honour had offered two “other courses” to the appellant neither of which would have hidden the appellant’s face from men;

c.   The respondent’s counsel did not formally object to the appellant’s giving evidence with her face covered;

d.   The respondent’s counsel stated, in response to counsel for the appellant’s suggestion that “she gets in the witness box, reveals her face to [Balla DCJ] and any other women in the Court, and the men look the other way”, that “We’re content with that”;

e.   The Commonwealth’s counsel did not formally object to the appellant’s giving evidence with her face covered;

f.   The Commonwealth’s counsel suggested that the appellant “could give evidence in some way with a screen, which revealed her presence to [Balla DCJ], but not to counsel”;

g.   After the Commonwealth’s counsel made the suggestion described in paragraph (f) above, the respondent’s counsel did not formally object to that course;

h.   The appellant’s evidence was critically significant to her case;

i.   The appellant stood to lose her case unless she gave evidence;

j.   The respondent and the Commonwealth would have suffered no undue prejudice if the appellant gave evidence:

i.   In a niqab; or

ii.   Via an alternative method;

k.   Permitting the appellant to give evidence:

i.   In a niqab; or

ii.   Via an alternative method;

would have accommodated the appellant’s genuine religious beliefs whilst doing justice between the parties;

l.   The trial judge was able to make findings about the appellant’s demeanour even if the appellant gave evidence:

i.   In a niqab; or

ii.   Via an alternative method;

m.    It would not have unduly interfered with the trial judge’s capacity to make findings about the appellant’s credibility if the appellant gave evidence:

i.   In a niqab; or

ii.   Via an alternative method;

n.   The significance of broader aspects of the administration of justice beyond the parties’ private interests, including the prospect that failing to permit the appellant to give evidence in a niqab or via an alternative method would:

i.   Deter Muslim women from giving evidence in court proceedings;

ii.   Deter Muslim women from making complaints to the police;

iii.   Deter Muslim women from cooperating with police investigations;

iv.   Deter Muslim women from instituting civil proceedings;

v.   Deter Muslim women from instituting criminal proceedings;

vi.   Increase the risk of marginalisation of Muslim women in respect of the administration of justice;

vii.   Inhibit Muslim women from exercising the right to seek access to the courts (see, eg, Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 315-316, 319).

10.   The trial judge’s failure to permit the appellant to give evidence via an alternative method was unreasonable and plainly unjust.

11.   In all the circumstances, a substantial wrong or miscarriage of justice was occasioned.”

22. Ground of appeal 2 was not pressed at the hearing. A twelfth ground was added at the hearing as follows:

“12.    The trial judge erred in not permitted the appellant to be called to explain her position in relation to giving evidence, and to enable her Honour to consider the degree of prejudice the defendants and Court would suffer by way of her giving evidence with her face covered.”

Consideration

23. Given the discursive and unhelpful nature of the notice of appeal it is necessary to attempt to group the various complaints together. The helpful speaking note prepared by Mr Kirk SC, who as we have said came into the case at a late stage, will also be addressed where relevant.

The discretionary decision made by the primary judge

24. The primary judge’s ruling declined, in the exercise of her Honour’s discretion to regulate the conduct of proceedings before her, to allow the appellant to give evidence with her face covered by a niqab. It was common ground that the appellant did not suggest to Balla DCJ that any implication arising from the Uniform Civil Procedure Rules 2005 (UCPR) or the Civil Procedure Act 2005 (NSW) was relevant to the discretionary decision her Honour was asked to make.

25. The appellant’s written and oral submissions correctly accepted that Balla DCJ had “broad powers to give directions for the conduct of proceedings, including as to the giving of evidence at the hearing (UCPR r 2.1; r 2.3(k),(l) and (m)), subject to the considerations set out in ss 56-58 of the Civil Procedure Act 2005 (NSW)”. This is not a promising basis for a successful attack on her Honour’s discretionary decision.

26. It is correct, as the appellant submitted, that Part 6 Division 1 of the Civil Procedure Act applied in this case and bound the primary judge to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(2). It is also the case that the Court was bound to manage the proceedings having regard, inter alia, to the just determination of proceedings: s 57(1)(a). The Court was bound to seek to act in accordance with the dictates of justice in making the interlocutory order the subject of this appeal: s 58(1). For the purposes of determining what the dictates of justice are, the Court must have regard to the provisions of ss 56 and 57 and may have regard, inter alia, to the degree of injustice that would be suffered by the respective parties as a consequence of the order or direction.

27. It does not follow, however, that any of the matters advanced by the appellant on the appeal involved a material consideration Balla DCJ did not take into account or gave rise to a conclusion which was unreasonable or plainly unjust (being the two principal ways in which the appellant sought to establish House v The King error).

28. Whilst, depending on context, “may” can mean “must”, it would be surprising if the matters a court “may” take into account pursuant to s 58(2)(b) of the Civil Procedure Act were matters a court “must” take into account, given that s 58(2)(a) identifies ss 56 and 57 as the only matters a court “must” take into account and s 58(2)(b) immediately thereafter identifies the matters a court “may” take into account. The legislative choice in addressing the list of factors in s 58(2)(b) as ones a court “may” take into account, in context, tends against the appellant’s submission that consideration of the s 58(2)(b) factors is mandatory. Nevertheless, the requirement that a court must seek to act in accordance with the dictates of justice remains: s 58(1). Whether, in and of itself, s 58(2)(b)(vi) is a mandatory consideration in the ascertainment of the dictates of justice under s 58(1) should await determination in a case where it is necessary to decide the question.

29. Assuming, in the appellant’s favour, that the primary judge was required to take into account the degree of injustice that would be suffered by the respective parties as a consequence of her order or direction, her Honour plainly did so. The language used by Balla DCJ about the consequences for the appellant of her decision was criticised as being insufficiently emphatic. That criticism should be rejected. In making her ruling, her Honour took into account the degree of injustice likely to be suffered by the parties, including the appellant. The specific reference to “my role to ensure that there is a trial which is fair to all parties” is otherwise inexplicable.

30. The appellant has not established that the ruling of the primary judge failed to engage in some relevant way with the principle of open justice. Accepting, as is obvious, that this principle may be limited where necessary to secure the proper administration of justice, no relevant limitation was here engaged.

31. Ground 3, which alleges the primary judge erred in failing to have regard to and apply rr 2.1 and 2.3(k)-(l) of the UCPR, is without merit. Those rules were not referred to by the appellant as potentially relevant in the discretionary decision her Honour was asked to make. In any event, no error has been shown in the exercise of the broad powers her Honour had to give directions for the conduct of proceedings, including as to the giving of evidence at the hearing. It is common ground that her Honour had the power she exercised. The failure to refer specifically to the source of that power in giving an ex tempore judgment on day two of the six day trial was not an error requiring correction by this Court.

Factual findings

32. To misapprehend the relevant facts may amount to House v The King error. Balla DCJ, having accepted the need to take into account the appellant’s religious beliefs, stated that “[o]n 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 … if I am not afforded the opportunity of being able to see her face when she gives evidence”. Having identified the relevant interests, her Honour considered those interests and concluded that fairness to all parties required her to reject the appellant’s application.

33. Her Honour did not err in so deciding. In relation to Ground 5(a), the fact that the appellant’s face would be covered while she gave evidence was clearly capable of impeding Balla DCJ’s ability fully to assess the reliability and credibility of the appellant’s evidence. The appellant’s counsel below acknowledged as much. It was not an error, of fact or law, for her Honour so to conclude.

34. In relation to ground 5(b), the fact that the appellant’s face would be covered was capable of affecting the weight to be given to the appellant’s evidence. It was obvious, including to the appellant’s counsel at the trial, that the weight to be given to the appellant’s evidence would affect the resolution of the conflict in the evidence about what had occurred in the appellant’s bedroom on the morning of 18 September 2014. In those circumstances it was open to her Honour to conclude that the impediment she identified in her ability fully to assess the reliability and credibility of the evidence should be taken into account.

35. Both factual findings were not only open to her Honour but clearly correct. Ground 5 should be rejected. It was not an error, of fact or law, for her Honour so to conclude.

The weight accorded to various matters

36. The appellant’s related contentions that Balla DCJ erred in failing to find certain facts (ground 6), take certain matters into account (ground 7) and accord due weight to certain material considerations (ground 9) may conveniently be addressed together.

37. Many of the grounds of appeal and a good deal of the appellant’s submissions addressed what was said to be the insufficient weight given to particular matters or the absence of “due” consideration of facts which it was accepted were taken into account. Something more must be shown. Giving weight to various considerations is an inherent part of the exercise of a discretionary power. As Latham CJ said in Lovell v Lovell (1950) 81 CLR 513 at 519, an appellate court will not set aside a finding on this ground alone “unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court”.

38. Dealing first with the suggestion raised in point 6 of the appellant’s speaking note on the appeal, that the appellant should have been permitted to give evidence from behind a screen, only able to be observed by the primary judge, it cannot have been an error for her Honour to act as she did where there was no such application made to her Honour. As we have made clear at the commencement of these reasons, the only application made by Mr Evatt below was for the appellant to be permitted to give evidence with her face covered by a niqab. The same conclusion applies to any other method suggested in the notice of appeal of permitting the appellant to give evidence; no such application was made to the primary judge.

39. Contrary to grounds 6, 7 and 9, her Honour noted, expressly, that “the demeanour of a witness and the viewing of their face is not the only way in which credibility is assessed.” It is thus not correct to suggest that the primary judge found that if the appellant gave evidence wearing a niqab her Honour would be deprived of the ability to make findings about the appellant’s credibility. Her Honour also correctly recorded that demeanour may be misleading in some cases. Her Honour’s finding was that seeing the appellant’s face would assist her in the assessment of the appellant’s credibility. That finding was correct.

40. Her Honour’s reference to being “completely deprived” of the assistance of seeing the appellant’s face reveals no error. It is clear that the primary judge proceeded on the basis that the appellant’s eyes could be seen through her face covering, describing the appellant as wearing “what I understand is a niqab; that is, her whole body, other than her eyes, is covered”.

41. The appellant’s contention that it is “often possible to tell” that a witness is laughing simply by looking at his or her eyes, is complete speculation. In any event, no submission was made to Balla DCJ that the ability to view the appellant’s eyes was of any relevance to her Honour’s ruling. To the contrary, very experienced counsel appearing for the appellant at the trial submitted that “[t]here are difficulties if the face is concealed in my opinion”.

42. The appellant’s further contention that viewing her face was arguably not necessary and not useful should similarly be rejected. As Balla DCJ found, the appellant would be giving evidence about highly contentious matters. Trial judges have long recognised that the ability to observe a witness’ demeanour during the giving of oral evidence can, in some cases, be valuable in assessing both the accuracy and credibility of the witness.

43. Contrary to Ground 9 and point 3 of the appellant’s speaking note on the appeal, her Honour did not give “disproportionate weight” to demeanour in circumstances where her Honour expressly recognised the limitations of taking into account a witness’ demeanour as a tool. Her Honour’s observation that 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 [appellant] at least …” was correct.

44. It may well be true, as the appellant submitted, that the attitude of Australian courts to demeanour based credit findings is a little different from that adopted in other countries at least to the extent that those attitudes are reflected in those few cases which have considered an application to give evidence whilst wearing a niqab: Police v Razamjoo [2005] DCR 408; R v NS [2012] 3 SCR 726; The Queen v D (R) [2013] EW Misc 13 (CC). It does not follow, however, that her Honour fell into House v The King error in taking demeanour into account in the way that she did.

45. In Fox v Percy (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ explained the approach to demeanour to be adopted by Australian courts, which approach binds this Court and the trial judge. Their Honours, at [23], explained that an appeal court must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record, citing Dearman v Dearman (1908) 7 CLR 549 at 561 and Scott v Pauly (1917) 24 CLR 274 at 278-281. Their Honours identified these limitations as including the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share.

46. Their Honours, at [31], went on to observe that in recent years judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of demeanour. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the “established principles about witness credibility”; but it tends to reduce the occasions where those principles are seen as critical.

47. These passages drawn from Fox v Percy make clear that Balla DCJ was entitled to take into account the “established principles about witness credibility”, in the qualified way that she did, as an important factor in assessing credibility and thus ensuring that the trial was fair to all parties.

48. No error has been shown in the weight accorded by her Honour to the matters the subject of the notice of appeal.

Impact of the interlocutory ruling on the appellant’s case

49. Contrary to point 2 of the appellant’s speaking note on the appeal, the primary judge recognised that if the appellant chose not to give evidence it could have a significant impact on the successful prosecution of her case. The appellant’s submissions about a “proper understanding of the degree of injustice” alleged by the appellant should be rejected. It is clear that her Honour took into account the difficulty for the appellant’s case if she decided not to give evidence at the trial. So much was obvious to everybody in the courtroom, including Mr Evatt, who immediately made it clear that the appellant’s decision not to give evidence would not lead to the abandonment of her claim.

50. The primary judge plainly understood the importance of the issue to the appellant’s case. Her Honour granted two adjournments so that the appellant’s counsel had “an opportunity to explain to the plaintiff the consequences of different courses”.

51. In any event, the case was in its second day when the ruling was made and the appellant’s case was in a state of flux. There was an amended pleading filed by the appellant the day after the interlocutory ruling. That pleading contained important amendments to her claim, although she did not abandon the intentional torts which had earlier been identified. In the circumstances faced by her Honour, it was by no means clear that the consequences of her ruling were that the appellant would choose not to give evidence. This is apparent from the fact that on the same afternoon, after the interlocutory ruling was given, there was further discussion between her Honour and counsel about possible ways in which the appellant could give evidence. No suggestion was made by experienced counsel then appearing for the appellant about those suggested courses, including any submission that further consideration of this issue by the Court and the parties was pointless. Thus, at the time her Honour was asked to rule, it was not clear precisely what case the appellant would ultimately advance or what evidence would be led in support of that claim.

52. The appellant’s assertions about the just determination of the proceedings focus only on justice for the appellant and fail to appreciate the Court’s obligation to effect justice between the parties. As Balla DCJ’s judgment makes clear, the potential prejudice to the appellant from a refusal to permit her to give evidence with her face covered by the niqab had to be balanced against the injustice arising to the respondent and the Commonwealth from the appellant being allowed to give evidence about contentious matters with her face covered by a niqab.

53. Contrary to point 4 of the appellant’s speaking note on the appeal, the primary judge did not err in failing to find, take into account and accord “due” weight to the fact that the respondent did not formally object to the appellant giving evidence with her face covered. It is not correct that the respondent did not object, or consented, to the appellant giving evidence with her face covered by the niqab. On a fair reading of the transcript, the respondent firmly opposed the application.

54. In calling the appellant to give evidence, Mr Evatt said:

“Your Honour, I’m calling the first plaintiff. There’s a slightly unusual religious problem. She can show her face to women, but not to men. What I suggest is that she gets in the witness box, reveals her face to your Honour and any other women in the Court, and the men look the other way.”

55. Counsel for the respondent stated “[w]e’re content with that”. At that point, as subsequently became clear, Mr Evatt was not suggesting that the appellant give all of her evidence, as distinct from being sworn, with her face covered. This is revealed in the following questioning:

“HER HONOUR …[f]or the whole of her evidence?

EVATT: No. Only for when she’s being sworn in, your Honour.

HER HONOUR: I don’t know if I’m happy with that. Are you proposing that she would have her face covered while she’s giving evidence and being cross- examined?

EVATT: I’m afraid so. Yes. It’s not very satisfactory, your Honour, but it’s something we have to live with.

…

EVATT: Your Honour, I have to correct it. She wants her face concealed for the whole of her evidence. I misunderstood. I just thought it was just for the swearing in. It’s for the whole of the evidence. …”

56. When it became clear that the application was for the appellant to give evidence and be cross-examined with her face covered, counsel for the respondent submitted:

“Your Honour, facial expressions is a very important part of giving evidence, and as I understand it in these courts, in New South Wales at least, my understanding, or recollection [is] that if you are here, you must show your face. That’s what I understand. We’re in your Honour’s hands, of course, but our preference is that this witness give evidence the normal way.” (emphasis added)

57. A short time later counsel for the respondent submitted that the primary judge should “insist that the [appellant] comply with the rules of this Court and give evidence in the normal fashion”.

58. The appellant’s submission that the application to give evidence wearing a niqab was only “weakly opposed” by the respondent should be rejected.

59. Contrary to Grounds 6, 7 and 9 and point 3 of the appellant’s speaking note on the appeal, the primary judge did not err in failing to find, take into account and accord due weight to the fact that the respondent and the Commonwealth would have suffered “no undue prejudice”. These grounds rely on an incorrect premise. The prejudice to the respondent was obvious. A conflict in the evidence as to what had occurred in the appellant’s bedroom on 18 September 2014 was inevitable. If the appellant was permitted to give evidence with her face covered by a niqab, the ability of the primary judge to assess the appellant’s credibility would be affected, which could in turn affect the resolution of the conflict in the evidence. The suggestion made in oral submissions that the primary judge could have permitted the appellant to give evidence wearing a niqab and drawn inferences contrary to the appellant’s interests by reason of her failure to allow her demeanour to be observed should also be rejected. No such proposal was put to her Honour. In any event, adopting that proposal would have involved the unfairness her Honour identified in being denied the opportunity to observe the witness giving evidence.

60. The primary judge did not place inappropriate weight on the fact that she had offered two “other courses” to the appellant in deciding whether to allow the appellant to give evidence with her face covered. The reference to the “other courses” offered to the appellant was part of her Honour’s correct and fair summary of the course of the proceedings.

61. Contrary to grounds 7 and 9 and point 5 of the appellant’s speaking note on the appeal, the primary judge did not err in failing to take into account and give due weight to the prospect that failing to permit the appellant to give evidence with her face covered would “deter Muslim women from accessing the courts” or “impede/deter other such witnesses or parties approaching or participating in the justice process”.

62. Balla DCJ was not making, and did not purport to make, any ruling of general application about access to justice issues involving Muslim women or women of any other faith who choose to cover their faces with a veil. The only question addressed by the primary judge was whether, in the particular circumstances of this case, the appellant should be permitted to give evidence with her face covered by a niqab. The additional considerations identified by the appellant were not considerations that the primary judge was required to take into account in determining that application, not least because the appellant did not suggest they were relevant matters for her Honour to consider.

63. As we have said, no evidence was led before the primary judge and no submission was made at the trial that the decision had any broader implications for some or all women of Islamic faith, or women or other faiths more generally. Whilst the precise limits of permissible judicial knowledge are perhaps unclear (compare Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9 at [67]-[68] per McHugh J and [165] per Callinan J) the breadth of matters contended to fall within s144 of the Evidence Act in this case seem to us to be clearly impermissible. For example, to assume the existence of 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 seems to us to require a degree of impermissible speculation. To draw inferences about the effect on the putative group of the ruling by the primary judge seems to us to add another layer of impermissible speculation. The invitation to this Court to take judicial notice under s 144 of the Evidence Act of some wider implications for a group of women in Australia of Islamic faith should be rejected.

Failure to permit the appellant to give evidence in her niqab “or by some other method”

64. There was no error in the primary judge’s ruling that the appellant could not give evidence with her face covered by a niqab. The appellant was a party in the case, not merely a witness. The appellant’s evidence was strongly contentious. 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. The primary judge did not err in concluding that fairness to all parties required her to reject the appellant’s application. In drawing this conclusion we refer, without repeating, to our earlier findings about the appropriate steps taken by the primary judge in reaching her conclusion.

65. All of the matters put to Balla DCJ were addressed by her and taken into account. 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.”

66. Finally, in relation to ground 12, while leave to amend the notice of appeal should be granted, the ground should be rejected. The ground is in two parts. The first relates to the circumstances in which the trial judge did not require oral evidence from the appellant. The transcript makes clear that the trial judge did not require the appellant to be called to explain that she refused to give evidence other than with her niqab on. Her Honour made clear that she accepted an assurance from Mr Evatt about that matter, which acceptance is recorded in her ex tempore judgment. There is no basis to conclude that Mr Evatt proposed that the appellant should give evidence about any other topic for the purpose of supporting the application to give evidence wearing her niqab. If experienced counsel had wished to lead evidence from the appellant on any other topic he would have said so. To the extent that the appellant relies on this ground as a rejoinder to the respondent’s submission that there was no evidence about many of the matters that the primary judge is now alleged to have overlooked, that rejoinder fails for want of foundation.

67. The second issue addressed by ground 12 is the submission that allowing the appellant to give evidence would have enabled “her Honour to consider the degree of prejudice the defendants and Court would suffer by way of her giving evidence with her face covered”. No submission was made to Balla DCJ that her Honour should consider the application only after hearing from the appellant on the voir dire. It was not an error for her Honour to fail to give the appellant an opportunity which her experienced counsel did not request.

Conclusion and orders

68. No error has been shown in the discretionary decision made by Balla DCJ. Her Honour addressed a difficult case with sensitivity and care. In addressing this interlocutory application her Honour was fair to all parties and was at pains to ensure that justice according to law was done. This can be seen in the way her Honour herself raised possible alternative methods of the appellant giving evidence, whilst being fair to all parties. Those alternative methods were rejected by the appellant. No error has been shown in her Honour’s decision which was limited to the application actually made by the appellant, to give her evidence with her face covered by a niqab.

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: UCPR r 51.53. 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 wearing her niqab. For the foregoing reasons, no error has been shown in the determination of the primary judge that the appellant should not be permitted to give evidence while wearing her niqab.

70. The orders of the Court are:

1. Leave to amend the notice of appeal to add ground 12 granted;

2. Appeal dismissed;

3. Appellant to pay the costs of the respondent of the appeal as agreed or assessed.

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Amendments

21 March 2019 - Typographical errors in [19], [21], [56], [69] amended; Case citation errors in cover sheet, headnote, [4], [63] amended

31 May 2018 - Typographical error in [21] amended.

21 May 2018 - 21 May 2018: Typographical errors in [28] and [45] amended.

Decision last updated: 21 March 2019