Whose Laws Are Archaic? When Standing In Court Matters More Than Violence Against Women

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A Muslim woman is on ‘trial by media’ for refusing to stand in court. But the media’s attention should be focussed on the allegations of police violence against a woman, writes Michael Brull.

Moutia Elzahed is a Muslim woman, who has two children. They are both teenage boys. She is married to Hamdi Alqudsi, who was convicted for his role in helping seven men go to Syria. As he is in prison, Elzahed must look after her two children as a sole parent.

On 18 September 2014, their house was raided by both the federal and NSW police. Ms Elzahed alleges that she was punched in the ear, eye and head during the raid. Her sons also allege that they were treated violently.

Ms Elzahed alleges that the police called her sons “terrorists”. She alleges that they said to her things like “Shut up bitch”, and “Get out of the fucking bed bitch”. Her son alleges that whilst not fully dressed, she tried to cover her body with a blanket. As she refused police requests to remove the blanket, a police officer punched her.

There has been no suggestion that Ms Elzahed has committed any crime, or is in any way implicated in the criminal actions of her husband. Yet the fact that she is seeking redress for violence allegedly perpetrated against her, whilst looking after two children by herself, has garnered little sympathy from the public, or from media commentators.

In this case, the alleged perpetrators of violence against a woman are the police. And the woman is a religious Muslim, who wears a niqab. No voices of sympathy have been offered on Ms Elzahed’s behalf. No interest has been shown in exploring the allegations she has made against the police.

In fact, it is striking that the allegations of violence have been completely ignored, as various media commentators compete to ridicule Ms Elzahed for her religious beliefs.

 

Evidence rejected because of the niqab

Ms Elzahed wears a niqab. This is a type of conservative Islamic headdress, which covers a woman’s neck and most of her face, except for her eyes. It is worn by a small minority of Muslim women. District Court Justice Audrey Balla decided that because Ms Elzahed refuses to take off the niqab to testify, she will not be allowed to give evidence about the assault by the police.

In effect, this is a determination to not hear the central allegation of the case, due to the inability to see Ms Elzahed’s face. It is true that being unable to observe her demeanour may limit the ability of the court and opposing council to evaluate her testimony. Yet there is also evidence that “that the observation of demeanour diminishes rather than enhances the accuracy of credibility judgments”.

Aside from that, it is dismaying that the courts should decide to close the doors on justice to Ms Elzahed due to her religious beliefs. It would have been open to the court to evaluate her evidence on the basis of what she said, and how compelling it sounded. The Justice could have accounted for the fact that Ms Elzahed’s facial demeanour could not be observed, and evaluate the evidence accordingly.

Though it is District Court Justice Balla’s job to weigh up evidence in the circumstances, in this instance, she is refusing to do so. Balla DCJ is apparently convinced that she is incapable of weighing a witness’s evidence if she cannot observe that witness’s face.

The transcript of when the issue first arose in the court shows that Balla DCJ instantly objected to Ms Elzahed presenting evidence in court with her face covered. Indeed, she expressed opposition before the lawyers for the police did, and her opposition was markedly stronger than theirs.

When Clive Evatt, the barrister for Ms Elzahed, first explained that his client would only briefly show her face, and only to women, the NSW Police lawyer said, “We’re content with that”. Balla DCJ, however, instantly began asking questions, expressed concern, and then solicited criticism from defence lawyers by asking them to comment.

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Evatt said, “It’s not very satisfactory, your Honour, but it’s something we have to live it (sic).” Balla DCJ replied, “It’s not something I have to live it (sic). Do either of you have something to say about that?”

She conceded in her judgment that she was “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.”

Thus, Ms Elzahed’s cry for justice is destined to go unheard.

For all the rhetoric about love of liberty and hatred of violence against women we hear casually thrown around by prominent media and political figures, none have expressed any concern about this case. I suspect that if the perpetrators of violence had not been the police, but had been Muslim men, the reaction by the media would be somewhat different.

As it stands, the role of the media – primarily the Daily Telegraph, but also commercial television – has been harshly critical of Ms Elzahed.

 

Prosecuting Ms Elzahed

Aside from disinterest in hearing Ms Elzahed’s evidence, the court has taken offence at her failure to stand when Balla DCJ enters and leaves the court. Ms Elzahed has instructed her barrister that she won’t stand for anyone except god. Balla DCJ responded by warning her that she may be committing an offence.

The offences derive from a recently enacted law, which targets supposedly disrespectful behaviour in court. It came into effect a few months ago, on September 1. It is understood that it is targeted at religious Muslims who have declined to stand in court.

For each “offence”, Ms Elzahed is liable to a penalty of 14 days in prison, or a fine of $1,100.

One might think, in a civilised country, a court would respond to an allegation of violence against a woman with compassion and respect. This is not that type of country.

The court has shown little interest in the serious allegations Ms Elzahed has made. Refusing to give a hearing to Ms Elzahed essentially closes the doors of justice on her due to her religious beliefs.

Adding injury to insult, Balla DCJ has threatened the prospect of fines and jail against Ms Elzahed, for failing to stand at certain times.

It seems some archaic traditions are more worthy of respect than others. Some sacred beliefs are apparently more rigid and inflexible than others.

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Michael Brull

Michael Brull writes twice a week for New Matilda. He has written for a range of other publications, including Overland, Crikey, ABC's Drum, the Guardian and elsewhere. His writings can be followed at his public Facebook page (click on the icon below right).

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