Can the court order that? Is it a contempt of court for her to refuse?
I started writing this post a few weeks ago when a similar thing apparently happened in a Queensland court, though it seems the Queensland case didn’t actually go as far.
In the Queensland case the Courier Mail reported that a Queensland magistrate queried if it was appropriate for a Muslim woman to wear a niqab in court. (The report incorrectly refers to her wearing a burqa; I’ve previously linked to this graphic showing types of Islamic womens’ attire.) The Courier Mail report seems something of a beatup, as SBS discussed. As I read it, the magistrate didn’t do anything more than wonder out loud; no one asked the accused to remove her head dress; nor did anyone suggest she ought to so she could be identified.
In any event, how can a Court identify an accused person? I’ve seen judicial officers ask an accused person, “Are you Jane Doe?”, and Jane Doe answer, “Yes.”
But really, what does that establish? It could be anybody standing in Court. (And indeed, when you consider cases such as DPP v Velevski (1994) 20 MVR 426 — where Michael Velevski falsely used the name of and was charged and (originally) convicted as his brother Pita Velevski, and Pearcey v Chianta (1987) 6 MVR 10 — where Danillo Chianta allegedly gave his brother’s name, Alexander Chianta, to the police — it probably does happen.) So too, asking a woman to remove her headdress is unlikely to establish her identity, unless the Bench knows her.
I don’t know if the Court could compel an accused person to remove a veil. Might it be a contempt of court to refuse such a direction?
A NSW magistrate recently declared she considered an accused man’s refusal to stand when she entered the Court was a contempt of court, but ultimately did not punish the accused for it. It seems in that case that the Court’s focus was more on the disrespect shown by the accused, as tending to undermine the authority of the proceedings. That is one of the ways contempt of court might occur.
But contempt of court goes further than ‘mere’ disrespect or criticism of the court. Contempt of court comprising conduct ‘scandalising the court’ must be so severe or defamatory of a judge or court that it’s likely to interfere with the administration of justice by seriously lowering the authority of the court.
For example, in Lewis v Ogden (1984) 153 CLR 682, a barrister was charged by a judge with contempt contrary to (the now repealed) s 54A of the County Court Act 1958. That section created an offence of wilfully insulting a judge. The barrister — courageously or foolishly, depending on your perspective — had a crack at the judge during closing addresses, suggesting pretty strongly the judge had taken an adverse view of his client’s case and offered those opinions to the jury. The judge charged the barrister with contempt. The High Court said the barrister was countering possible adverse comments that might be made by the judge in his charge to the jury, and so there was a legitimate point to his address. Ultimately, it held that the final address was, “[D]iscourteous, perhaps offensive, and deserving of rebuke by His Honour, but in our view it could not be said to constitute contempt.” It also observed that a court’s contempt power is rarely, if ever, used to protect the personal dignity of a judge. However, an advocate calling a magistrate a cretin whilst the court is sitting is — in addition to not being good advocacy — sufficient insult to the authority of the court to constitute contempt: Attorney-General v Lovitt  QSC 279. Unsurprisingly, publishing books alleging judicial officers are corrupt can constitute contempt by scandalising the court: R v Hoser and Kotabi Pty Ltd  VSC 443 and Hoser & Kotabi Pty Ltd v The Queen  VSCA 194. In contrast, a lawyer, out of court, calling a judge a wanker when learning of the effect of an order of the court, was held not to be a contempt: see Saltalamacchia v Parsons  VSCA 83, generally affirming Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Victoria)  VSC 430. In a similar vein, a submission of bias made by counsel of a judicial officer cannot, without more, constitute a contempt; but if made in an insulting or disrespectful manner, or not for a genuine concern of bias, it would be a contempt: Magistrates’ Court at Prahran v Murphy  2 VR 186 at 209. (You can also find a good discussion of contempt by scandalising the court at “Does the ‘Offence’ of Contempt by Scandalising the Court Have a Valid Place in the Law of Modern Day Australia?” (2003) 8 Deakin Law Review 113.
Another way of committing a contempt of court is by disobeying a proper order of the court.
Archbold notes examples such as refusing to leave when hindering or interupting proceedings; persisting with adducing evidence ruled irrelevant or acting offensively to the court, and removing documents from the court when ordered not to do so.
Some astounding examples of this are throwing a bag of excrement at a juror, baring buttocks at the trial judge, offensive language, continuing malevolence and wilful disruptiveness: DPP v Paisley  VSC 594; DPP v Sonnet  VSC 596; DPP v Wenitong  VSC 595; and DPP v Johnson  VSC 597.
However, those acts of disobedience all share the theme of potentially or actually interfering with the administration of justice, rather than just contumaciousness.
So what then of a defiant witness who refuses to remove her niqab or burqa? (Or, a person who refused to remove a motor cycle helmet, or a balaclava, or even a hat or sunglasses?)
If the mere sight of the person’s face would truly leave a court none the wiser about the identity particulars of the person in the dock, or court, I wonder if the court order would be a ‘proper’ one?
In the UK report at the top of my post, the Daily Mail reports that the accused’s female counsel offered to identify the accused, or suggested that a female police officer or prison guard to do so. Although practical suggestions, those people wouldn’t necessarily be in any better position to say who the accused was either. (I don’t think I’ve ever had the occasion to request ID from my clients, so in reality, I take them at face value — pun intended — when they tell me they are the person named in the charge before the court.)
The Canadian Supreme Court recently grappled with the issue of witnesses wearing a veil when testifying, in R v NS  3 SCR 726.
In that case, NS alleged her uncle and cousin sexually assaulted her. She wanted to testify at a preliminary enquiry — I guess that’s the Canadian equivalent of a committal hearing? — wearing her niqab, which hid her face but left her eyes visible.
The judge ordered that she remove her niqab. That decision raised questions about freedom of religion and the right to a fair trial under the Canadian Charter of Rights. (The equivalent provisions her are Charter 14 and 24.) The fair-trial aspect relates to the right an accused person has to confront their accuser, and to the ability of the finder of fact to assess the witness’s credibility by gauging their demeanour.
The majority held at  that the Courts should determine if a witness be required to remove a religious garment by considering four questions:
- Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?
- Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
- Is there a way to accommodate both rights and avoid the conflict between them?
- If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?
The majority then explained these points in detail, and directed that the case return before the preliminary enquiry judge to use these points to decide if the witness should remove her niqab.
A good critique of the judgment is available on The Court blog, Peeling back the Court’s decision in R v NS. (Well worth a read.) One of the points Stephanie Voudouris makes there is that the common law’s view of the utility of demeanour in deciding credibility and reliability of witnesses isn’t borne out by psychological research. There was an article on this a few years ago, Who is telling the truth? Psychology, common sense and the law (2006) 80 ALJ 655. I think I’ve seen reference to more recent articles on the point, but I can’t lay my hands on them right now.
R v NS doesn’t really tell us the answer to what might happen with an accused person required to remove a niqab or burqa, but does show some of the considerations that will come in to play in Victorian courts. (I expect those human rights considerations will get a mention in the UK case, because of its Human Rights Act.) So long as an accused person has an absolute right to maintain their silence in a criminal hearing — so no question of assessing their demeanour will come into play — and, if a Court could see their face it would be none the wiser about who they actually are, I think the answer will be that there is no power to compel them to remove a veil.
To me, the real question that crops up is what is a court to do if faced with any accused person, and there is a real question about the identity details of the person in the court room asserting to be the accused or offender? When the accused pleads not guilty, it’s up to the prosecution to prove that element beyond a reasonable doubt.
But when the accused pleads guilty, it’s a different story. The general rule is that a guilty plea is a formal admission of every element of an offence: DPP v Drucker (1997) 98 A Crim R 142 at 147; R v Henry  VLR 525; R v Rimmer  1 WLR 268 at 271; De Kruiff v Smith  VR 761; R v Broadbent  VR 733; R v Tonks  VR 121.
In Maxwell v The Queen (1996) 184 CLR 501 at 510 – 11 the High Court said that when a court doubts that a guilty plea is not genuine, is must obtain either an unequivocal plea or direct that a plea of not guilty be entered. Although that was in a different context, I guess that the same reasoning would apply if a court considered it was being hoodwinked. The effect of rejecting the plea and entering a plea of not guilty would be to oblige the prosecution to then prove beyond reasonable doubt who the person standing in the court actually is, and that would overcome the problem facing the court.
What do you think?