A Perth judge has ordered that a Muslim woman must remove a traditional face-covering burqa while giving evidence before a jury in a fraud case.
Judge Shauna Deane ruled that the witness, 36-year-old Tasneem, would not be allowed to give evidence without removing her head covering, known as a niqab.
The female witness, who does not wish her surname to be published, has worn the burqa since the age of 17 and wanted to wear it while giving evidence.
Judge Deane said that while giving evidence without the niqab may make the witness uncomfortable, she stressed the importance of upholding a fair trial and saying the head covering could be misleading for the jury when assessing the evidence of the witness.
In her ruling, Judge Deane stressed the decision “will not and cannot” be used as precedent for other courts, and said a judgment on whether the head covering was appropriate in court needed to be made on a case-by-case basis.
She said the ruling was not designed to determine the validity of garments to people of Muslim faith.
She also said the reliability of evidence could be affected because it was likely to add stress to the witness.
But she ultimately ruled that a degree of distress was “the nature of the process” when giving evidence, and said it was needed for the jury to asses credibility and reliability of evidence.
The Judge said lawyers would engage in discussions as to how to best accommodate the witness giving evidence before the trial former Muslim school director Anwar Sayed begins on October 4.
Sayed is accused of fraudulently obtaining up to $752,000 in state and federal grants by falsifying roll numbers for the
Muslim Ladies College of Australia in Kenwick, south of Perth, in 2006.
The defence had raised concerns about how the jury could be expected to read the woman’s facial expressions if they could not see her face.
The first jury in the case was discharged after the estimated time for the trial blew out from 10 days to five weeks, causing attendance problems for five jurors.
‘Burqa case’ takes bizarre twist
On August 6 Sayed was allegedly attacked as he drove to his solicitor’s office in Perth and was treated in hospital for minor injuries.
In court the day before, Sayed’s lawyer Mark Trowell, QC, said his client had received death threats via phone calls and handwritten notes over the burqa issue.
Sayed was at court today and told reporters outside that he was “much better”.
Defence lawyer argued to remove face covering
Mr Trowell had argued that the Muslim woman should remove her burqa to give evidence, just as she would have to appear without the covering in an Islamic court.
But Judge Deane rejected the argument as not relevant, as the matter is not being heard in an Islamic court.
Mr Trowell, QC, said the woman’s wish to wear the burqa was a “preference she has”.
“It’s not an essential part of the Islamic faith. If she was in an Islamic court she would be required to remove it,” he said.
Judge Deane replied: “This isn’t an Islamic court.”
Prosecutor Mark Ritter, SC, told the court the woman wanted to give evidence but would feel uncomfortable without the burqa and that could affect her evidence.
“It goes beyond stress . . . it would have a negative impact,” Mr Ritter said.
He said the woman, who has lived in Australia for seven years, had worn the burqa since the age of 17 and went without it only before her family and male blood relatives.
“Female modesty is a very important part of the religion,” he said.
Tasneem was an Islamic studies teacher at the Muslim Ladies College of Australia in Kenwick, south of Perth, in 2006.