Last week, a Perth judge ruled that a prosecution witness in a fraud case would have to remove her niqab (face-veil) while giving evidence in court. The defence argued, and the judge agreed, that the jury would not be able to adequately assess the witness’s demeanour if her face was covered.
Sushi Das cites this case in her opinion piece in The Age calling for an “intelligent debate” on whether or not Australia should consider a burqa ban, such as those being mooted in various European countries. Like many of those who rail against “the PC brigade” and call for open and robust debate, she then places boundaries around that debate. Describing Senator Cory Bernardi and the Reverend Fred Nile as “stupid” and as “chasing the bigot vote” — well, apparently, that is a bit too robust.
But in the interests of debate — or at least discussion — I would ask Das and others to consider another court ruling, this time in Canada.
In that case, too, a woman wanted to wear a niqab while giving evidence in court, an allowance that was initially denied.
But this ruling was overturned on appeal. She was giving evidence as the alleged victim in a r-pe case — a traumatic experience in any circumstances.
The Canadian judges rejected the argument that the facial demeanor was essential in assessing a witness’s truthfulness, saying that not being able to see “one small aspect” of a witnesses demeanor was not essential when lawyers could “cross-examine to their hearts’ content”. They also questioned the motives of defendants who demanded that witnesses unveil, suggesting that they might simply be attempting to keep prosecution witnesses out of court.
The witness in the Perth case is giving evidence on far less sensitive events. But it is worth considering the implications of both cases. Although the judge was careful to state that her ruling applied only to that particular case and was not binding on any other court, victims of crime, as well as witnesses to crime, are likely to see it as setting a likely precedent.
Reporting a crime and giving evidence in court are highly stressful and potentially traumatic experiences. If a woman believes that she may be ordered to reveal parts of her body that she usually keeps private, she may steer clear of the police and legal systems altogether. Is that a desirable outcome?
A witness’s evidence may well be regarded by a jury as less reliable, if they cannot see her face. Her legal and community advisers may well urge to remove her face-veil for that reason.
But I would question how much you could really tell from the facial expression of a woman who had been ordered to uncover her face against her will. Any discomfort could be due to humiliation and discomfort rather than dishonesty. And she may not appear in court at all.
As the Canadian judges noted, “Society should not be put in a position of losing evidence from critical witnesses because we don’t quite get to see all of their demeanour.”