[2016] NSWDC 327
Elzahed v State of New South Wales (2018) 97 NSWLR 898
[2018] NSWCA 103
House v The King (1936) 55 CLR 499
Source
Original judgment source is linked above.
Catchwords
[2016] NSWDC 327
Elzahed v State of New South Wales (2018) 97 NSWLR 898[2018] NSWCA 103
House v The King (1936) 55 CLR 499
Judgment (2 paragraphs)
[1]
Judgment
HIS HONOUR: Daniel Haile is currently on trial before me sitting with a jury charged with the murder of Raymond Pasnin on 30 October 2013. Lyndal Archbold has been called by the Crown to give evidence of the events on that day. Ms Archbold was the then current partner of Mr Pasnin and was with him when he was fatally shot in the carpark of a unit premises in Pendle Hill by Mr Haile just before midnight. Mr Haile accepts that he fired the gun that killed Mr Pasnin but maintains that he did so in self-defence.
Mr Haile was first tried for this alleged offence in 2016. Ms Archbold gave evidence for the Crown at that time. However, Mr Haile successfully appealed against his conviction to the Court of Criminal Appeal in 2022 and a new trial was ordered. Since then, Ms Archbold has converted to Islam. I was informed that in the first instance she is prepared to give evidence again, but that she will only do so whilst wearing a face covering in accordance with what she maintains are the requirements of her faith. Save for reference to that issue below, the correctness or otherwise of the proposition that Islamic law does not permit a woman to give evidence unless veiled is not, and for obvious reasons cannot be, the subject of any authoritative or binding decision or determination by me in these reasons.
Mr Haile has objected to Ms Archbold giving evidence unless she does so with her face covering removed. He contends that it would not be possible for the jury accurately or reliably to assess the evidence that Ms Archbold is expected to give unless they are able to see her face as she does so. Even though her eyes will be visible, Mr Haile maintains that the jury's ability to observe Ms Archbold's facial expressions is an important part of that process and that the accuracy of any impression that the jury might form about her credibility and reliability will be potentially degraded if her face is covered. It should also be noted that Ms Archbold has already requested that her evidence be taken by video link from a remote location and with the parties' agreement I have acceded to that course.
R v Haile [2023] NSWSC 122 | Case summary | Zoe
Mr Haile's submissions also draw heavily upon the anticipated content of Ms Archbold's evidence. As already noted, Ms Archbold was present with Mr Pasnin when he was killed. Evidence already given in the Crown case suggests that Mr Pasnin and Ms Archbold had left his mother's apartment on the third floor of the unit complex very shortly before he was shot and had descended stairs to the carpark level below. A volley of gunshots was heard by several neighbours at this time, some of whom saw Mr Pasnin collapse onto the driveway with Ms Archbold very close by. The Crown case is that Mr Haile shot Mr Pasnin with a gun that he brought to the scene. The Crown maintains that Mr Haile was paid to kill Mr Pasnin by his former girlfriend Louise Spiteri-Ahern who was motivated to do so out of hatred and revenge fomented by the nature of their relationship and the circumstances in which it came to an end. Ms Archbold is in that sense the only eyewitness to what occurred and is accordingly of critical importance to the Crown case.
Ms Archbold is correspondingly critical to Mr Haile's response to that case. Counsel for Mr Haile opened to the jury by indicating that the gun that he used to shoot Mr Pasnin was not his gun but that he wrested it from Mr Pasnin in the course of an altercation between them that erupted during the course of a drug transaction. Simply put, Mr Haile maintains that he attended the premises that evening in order to collect money that was owing to him for drugs previously supplied to Mr Pasnin during which Mr Pasnin produced a gun and threatened Mr Haile. In response to the threat posed by Mr Pasnin, who was armed with this gun, Mr Haile reacted out of fear for his own safety in the course of which encounter he killed Mr Pasnin in self-defence.
It will be apparent that it is no part of my inquiry to determine the outcome of this factual dispute. However, the importance of Ms Archbold's evidence in the jury's consideration of the issue cannot be gainsaid. It is therefore hardly controversial that the issue of whether the jury will suffer a relevant disadvantage in assessing her evidence is not of passing or merely theoretical interest. The importance of the issue of whether Ms Archbold should be required to give evidence with her face uncovered is a direct function of the potential significance of the evidence that she might give.
That wisdom gained recent prominence in the Court of Appeal in Elzahed v State of New South Wales (2018) 97 NSWLR 898; [2018] NSWCA 103. In that case, a judge of the District Court declined Ms Elzahed's application to give evidence wearing a niqab. The issue on appeal was whether the primary judge's discretionary decision to reject Ms Elzahed'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. In upholding the primary judge's decision, the Court said the following:
"[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'." [Emphasis added]
Ms Archbold is clearly not a party to the present proceedings: she is "merely" [sic] a witness. However, her evidence is likely, if not certainly, to be highly contentious. To adopt the expression used by Judge Balla in Elzahed v Commonwealth of Australia (2016) 23 DCLR (NSW) 199; [2016] NSWDC 327 at [5] and [7], her evidence is likely to be "crucial" in the sense that resolution of the case will undoubtedly require the jury to make decisions about Ms Archbold's credibility and reliability. The (currently uncertain) prospect that Mr Haile might himself choose to give evidence about what occurred on the night serves only to cast the issue of whether Ms Archbold should be required to remove her face covering while giving evidence about that into an even brighter light.
The Crown has also drawn to my attention the fact that, independently of her religious predisposition, Ms Archbold is suffering from an anxiety disorder precipitated or exacerbated by her experience in the circumstances that give rise to these proceedings. In the events that have occurred, her medical prognosis cautiously supports the proposition that she is capable of giving evidence despite her condition and her associated desire not to do so. Ms Archbold's medical condition is not, however, directly related to her religious wishes.
In my view, the potentially critical nature of Ms Archbold's anticipated evidence, and the very likely prospect that it will loom large in the determination of Mr Haile's guilt, means that it should be given without her face being covered. If Mr Haile maintains that he cannot otherwise receive a fair trial, I am inclined to resolve any doubt I might have in a way that gives full weight to his concerns. I have arrived at that conclusion independently of the following matter that the Crown drew to my attention after I had adjourned the proceedings to consider my decision.
The Crown has now indicated that Ms Archbold has given instructions, which it is on advice at liberty to disclose, that she is prepared to give evidence without wearing a face covering if she is ordered to do so. She has indicated that she considers that any such order would be both disrespectful and discriminatory and that her cooperation in such circumstances is proffered unhappily and reluctantly. I note those matters out of respect to Ms Archbold, but indicate that they would not have led, and do not lead, me to form a different view about the issue I have been required to decide.
I consider that Lyndal Archbold may only give evidence in these proceedings if the jury is able to see the whole of her face at all times.
[2]
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Decision last updated: 13 April 2023