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[2018] VSC 387
General information, not legal advice.
Supreme Court of Victoria
2018-07-16
Beale J
Original judgment source is linked above.
CRIMINAL LAW - Terrorism offence - Wife of accused seeking to wear a nikab in court during trial - Principle of open justice - Right of religious freedom - Right to participate in public life - Security concerns if spectators in public gallery have their faces covered - Whether a requirement that spectators in the public gallery have their faces uncovered constitutes a reasonable limitation on principle of open justice and rights of religious freedom and participation in public life - Elzahed v State of New South Wales [2018] NSWCA 103 - NS v The Queen [2012] 3 S.C.R. 726; [2012] SCC 72 - Police v Razamjoo [2005] DCR 408 - (unreported, Crown Court at Blackfriars, Judge Peter Murphy, 16 September 2013) - , , , .
1 Abdullah Chaarani is one of three accused charged with conspiring between 21 October 2016 and 22 December 2016 to do acts in preparation for, or planning, a terrorist act[1]. The terrorist act alleged in the indictment is "an action or threat of action involving the detonation of an improvised explosive device or devices and/or the use of bladed weapons and/or the use of a firearm in the immediate vicinity of Federation Square, Flinders Street Train Station and Saint Paul's Cathedral in the Melbourne Central Business District."
2 Mr Chaarani's wife, Aisha Al Qattan, wishes to wear a nikab[2] in court during his trial - that is, a veil that completely covers the head and face except for an opening for the eyes. I have previously indicated that, whilst all are welcome in my court, spectators in the public gallery must have their faces uncovered, chiefly for security reasons. Mr Chaarani and his wife (the applicants) seek a variation of my previous order to that effect.
3 In written submissions, the applicants submit that it is oppressive for me to prohibit Ms Al Qattan wearing a nikab in court. They submit that it breaches Ms Al Qattan's right of religious freedom and her right to participate in public life. These rights are enshrined in sections 14 and 18 of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter'). In summary, the following arguments are advanced in support of their application:
4 In my analysis of the issues, I will deal with each of these arguments in turn.
5 First, although no evidence has been adduced by the applicants, I have assumed for the purpose of this ruling that Ms Al Qattan wants to wear the nikab in court for religious reasons, and that her religious beliefs are strongly held. In other words, I accept that the right of religious freedom is engaged. I also accept that it is a very important right, which may go to the core of a person's identity. Likewise, I accept that the right to participate in public life is engaged and that it is an important right.
6 Second, I do not consider the wearing of nikabs in court for religious reasons to be disrespectful, offensive or threatening, although, as I will explain shortly, I do consider it to be an impediment to the deterrence and punishment of misbehaviour by spectators in the public gallery.
7 Third, I accept that Ms Al Qattan quite naturally wants to support her husband in court, and he desires that support, as he defends himself against a charge of the utmost seriousness.
8 Fourth, I accept that by revealing her face to security staff at the entrance of the court building, and presumably showing photograph identification at the same time, her identity can be determined before she takes her place in the public gallery. This goes some way to addressing security concerns, but security is more than just a matter of identification, as will be discussed later. Further, this is a joint trial of three Muslim accused. It is my understanding that Ms Al Qattan is not the only person who wishes to attend court with her face covered by a nikab: if Ms Al Qattan is permitted to do so, it is likely that permission would have to be extended to others. Once there are multiple spectators in the public gallery wearing nikabs 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. As for the weapon scanners, which every spectator passes through, they do not eliminate all security concerns: serious misconduct can occur in a court room without the need for a weapon.
9 Fifth, while Ms Al Qattan professes a willingness to abide by any directions given "to uphold the good order and management of the proceedings," no particular directions or measures are suggested by the applicants in their written submissions[3]. In my view, it would be undesirable and discriminatory to segregate spectators wearing nikabs and/or arrange for extra security staff to sit near them to monitor them. Nor would it be an appropriate use of limited court security resources, especially in a lengthy trial. Such measures would, in my view, be more restrictive of rights than a requirement that spectators have their faces uncovered.
10 Sixth, the fact that Ms Al Qattan and others were permitted to wear their nikabs in the public gallery at the committal proceedings before a Magistrate sitting alone does not mean that they should be allowed to do so at a trial before a judge and jury, where different considerations come into play.
11 Seventh, it is asserted that Ms Al Qattan is not a security risk. But persons closely associated with an accused have a larger stake in the proceedings than the casual observer and will be subjected to considerable stress where the charges are serious, as is the case here. Ms Al Qattan, and other supporters of the accused men who also wish to wear nikabs in court, may be able to handle the stress and act with restraint. But they may not. I consider that there is a risk that should not be ignored.
12 Eighth, as for the four cases relied upon by the applicants, none of them directly address the issues with which I am concerned; hence, it is submitted that it is implicit in the case law that it is acceptable to observe or even participate in court proceedings whilst wearing a nikab. Three of these cases concerned the question whether a witness should be allowed to wear a nikab whilst testifying and one concerned the question whether an accused should be allowed to wear a nikab during her trial.
13 In Elzahed v State of New South Wales,[4] the New South Wales Court of Appeal held that the primary judge in civil proceedings had not erred in refusing to allow the appellant to give contested evidence whilst wearing a nikab. The trial judge considered that the nikab would impede her ability to fully assess the appellant's credibility and reliability.
14 In NS v The Queen,[5] the Canadian Supreme Court considered whether the judge at a preliminary examination in respect of sexual assault charges had wrongly refused permission to the complainant to testify wearing a nikab. McLachlin CJ, Deschamps, Fish and Cromwell JJ dismissed the complainant's appeal but indicated that, what they called an extreme approach - never allowing a witness to testify in a nikab or always permitting it - was unsustainable and that it may be permissible for a witness to testify in a nikab if their evidence is uncontested. Le Bel and Rothstein JJ, who agreed in the result, preferred a clear rule that nikabs not be worn by witnesses at any stage of a criminal trial.[6]
15 In the New Zealand case of Police v Razamjoo,[7] the accused was charged with making a false statement regarding the theft of his car and making a false insurance claim in respect of that car. Two witnesses for the prosecution - one of whom was the accused's sister - wished to wear nikabs[8] whilst giving evidence in the summary trial. Their credibility and reliability was in issue. Judge Moore of the District Court of Auckland ordered that the witnesses remove their nikabs whilst giving evidence but also ordered that screens be set up in court to shield the witnesses' faces from all but the judge, counsel and female court staff.
16 In R v D,[9] an accused charged with witness intimidation wanted to wear a nikab during her trial. Identity was not in issue. Judge Peter Murphy of the English Crown Court decided that she could wear the nikab save when testifying.
17 In summary, these cases suggest that witnesses may wear a nikab if they are not giving contested evidence and that an accused, where identity is not in issue, may wear a nikab except when testifying. If participants in court proceedings may wear nikabs in certain circumstances, then it follows, so the argument goes, that spectators in the public gallery may do so. But there is at least one point of distinction. An accused is compelled to be present in court and, more often than not, witnesses for the prosecution are subpoenaed to attend court. Ms Al Qattan is under no legal compulsion to attend court.
18 Ninth, 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. As s 7 of the Charter recognises, these rights may be subject to limitations which can be "demonstrably justified in a free and democratic society based on human dignity, equality and freedom."
19 Criminal proceedings in the trial division of the Supreme Court are often highly stressful experiences, not only for the accused but for those close to the accused. Likewise for those close to any victims. As a consequence of that stress, incidents happen from time to time in court. Whilst 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. They may be said to other spectators, to witnesses, to the lawyers, even to the judge and jurors. In some cases, things said or done by spectators may necessitate the discharge of a jury, which may cause great distress to participants in the trial, not to mention the cost to the community.
20 Minimising the occurrence of such incidents must, in my view, inform one's approach to court management in general. More particularly, it should inform one's approach to what is acceptable attire in the public gallery. 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. Where the faces of spectators are uncovered, the court will have the full benefit of CCTV footage of the public gallery as well as the full benefit of any eye witnesses to the misbehaviour in court. Not only will identity be more readily established but objective proof of any misbehaviour may be available, for example, CCTV footage showing the alleged culprit uttering the offending words.
21 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.[10]
22 The potential problems associated with face coverings in court may arise where there is only one such spectator. They are exacerbated if there are multiple spectators in court wearing such coverings and identical or similar clothing. Such problems are not eliminated by simply getting persons to show their faces, and photographic ID, to security staff at entry points to the court building.
23 It is not good court management, in my view, to adopt a reactive approach, that is, to allow spectators to have their faces covered but eject them, and refuse them re-entry, if they are detected misbehaving. First, prevention is better than cure. Second, it is naïve to think that misbehaviour will always be immediately detected by court security staff. A person to whom something improper is said or done may be too stunned or frightened to raise the alarm immediately, enabling the culprit to get away. Or there may not be sufficient court security staff on hand. Court security resources are limited and one cannot always predict which cases will generate problems in the public gallery.
24 A requirement that spectators have their faces uncovered is not to force anyone to act immodestly.[11] First, the exposure of one's face in a court room cannot reasonably be viewed as an immodest act: subjective views to the contrary cannot rule the day, or the management of a court room. Second, if someone feels strongly that it would be improper for them to uncover their face in court, they can choose not to attend. If that is Ms Al Qattan's choice, arrangements will be made for live streaming of the proceedings to a remote facility within the court building so that she can still view the trial.
25 Open justice, religious freedom and the right to participate in public life are fundamental values which must be accorded full respect in our society and in this court. But no one could sensibly claim that these principles and rights brook no limitations.
26 On the one hand, I must consider the deleterious effect upon the applicants if Ms Al Qattan is not permitted to wear a nikab in the public gallery and, on the other, the deleterious effect upon court security of allowing spectators in the public gallery to have their faces covered. If I require spectators' faces to be uncovered, and Ms Al Qattan chooses to attend court without her nikab, she and her husband may be distressed by the exposure of her face in a public court. If she chooses not to attend, the applicants may be distressed by the fact that Ms Al Qattan is not physically present in court to support her husband, even though she will be able to follow the trial from a remote facility. On the other hand, the distress that can arise from misbehaviour by spectators in court, which in some instances may necessitate the discharge of a jury, is not to be underestimated. In this trial, which is likely to run at least six weeks, it will be alleged that the three accused are Muslim extremists who were conspiring to do acts in preparation for the commission of violent atrocities against innocent civilians, men women and children. There is likely to be intense media interest and coverage of the proceedings. In other words, the pressure not only on the accused but on those closest to the accused will be sustained and acute. In such circumstances, to allow spectators in the public gallery to have their faces covered is, in my opinion, to significantly compromise court security. Requiring spectators' faces to be uncovered is, in my view, the least restrictive means of upholding court security, bearing in mind that this requirement does not compel any one to attend court and remove their nikab.
27 In summary, for the reasons given above, 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.
[1] Contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth).
[2] "Nikab" is sometimes spelt "niqab". I have taken the former spelling from the "Explanatory Note on the Judicial Process and Participation of Muslims" by the Australian National Imams Council (ANIC), undated, posted on the ANIC website on 12 December 2017 ("the Explanatory Note").
[3] Apart from Ms Al Qattan showing her face to security when entering the building.
[6] A practical approach which, in my view, has much to commend it.
[8] Although referred to as 'burqas' in the judgment, it is clear that the veils the witnesses wanted to wear in that case had openings for the eyes.
[9] R v D (unreported, Crown Court at Blackfriars, Judge Peter Murphy, 16 September 2013).
[10] To preserve the integrity of the court process, it is commonplace for witnesses to be ordered to remain out of court until they have given their evidence. But if spectators can wear face coverings in court, a witness may be able to circumvent such an order.
[11] The Explanatory Note (see footnote 2 above) says this at page 7: "Muslim women commonly wear a headscarf referred to as a Hijab to cover their head and hair. On fewer occasions, women may wear a Burka or Nikab, which also covers their face. The Hijab and Burka or Nikab are seen as a sign of modesty, and a symbol of religious faith". (Italics added)
The Queen
Chaarani