Commonsense judge who put her foot down over burqa

SHE might be little known in her native NSW but District Court judge Audrey Balla made headlines all over the world last week when she stood up to a woman wearing a burqa.

Moutia Elzahed is suing the police but the judge is refusing to hear the case because she won't take her hijab off in court.

TWO judges, a convicted terrorist recruiter, his two burqa-wearing wives and two different outcomes.

She might be little known in her native NSW but District Court judge Audrey Balla made headlines all over the world last week when she stood up to a woman wearing a burqa.

The experienced judge, who prefers to keep a low profile, refused to allow Moutia Elzahed to give evidence unless she removed her veil.

It was a victory for commonsense — how can a court adjudicate on evidence from a witness whose face is covered?

Hamdi Alqudsi.

“It’s not always what is said but how it is said,” one legal source said.

It was believed to be an Australian first but what made Her Honour’s ruling even more newsworthy is that Elzahed is one of the two “wives” of Islamic State recruiter Hamdi Alqudsi, 42. The former disability pensioner is serving a minimum six-year jail sentence for helping young Australians travel to Syria to fight for IS.

And then there was his other “wife” Carnita Matthews, who had her own very public run-in with authorities five years ago over wearing a burqa.

As a judge who presides over only civil cases and not criminal trials, Judge Balla is rarely in the spotlight — unlike her more outspoken husband, fellow District Court Judge Peter Berman.

Just recently, tough-talking Judge Berman slammed plea-bargaining in a submission to the child sex abuse royal commission which is examining how the criminal justice system lets victims down.

Judge Balla, 60, could have expected her latest civil trial to make the news giving it involved Alqudsi’s wife suing the police over a search of her Revesby home during Australia’s largest counter-terrorism raids, Operation Appleby, on September 18, 2014.

Carnita Matthews at her trial.

Elzahed is seeking compensation for “assault and battery, false imprisonment and intimidation”. She is joined in the lawsuit by Alqudsi and her 17-year-old sons Hamza George and Abdulla George.

But it wasn’t until she sat on the bench on the first day of the case on Wednesday that Judge Balla learned the lead plaintiff refused to remove her burqa for religious reasons to give evidence.

She is one of the court’s most senior and longest-serving judges who has also sat on the Medical Tribunal. Lawyers who yesterday described her as down-to-earth said they were not surprised by her decision.

“She is very competent and a likeable and pleasant person,” said one. “But she’s very private.”

Judge Balla, who studied law at the University of NSW, has written or co-written some of the heftier legal tomes, including the Guidebook to Insurance Law in Australia and the NSW Motor Accidents Legislation.

Last week Judge Balla offered to close the court for Elzahed or said she could give evidence via videolink from another room.

Her barrister Clive Evatt told the court that wouldn’t work because the three male defence barristers for the police, who have denied any wrongdoing, would be able to see her face.

The wife of Alqudsi, Moutia Elzahed, is suing the police for hurting her during a raid.

“I have decided that she can only give evidence with her face uncovered. I decline to permit her to give evidence with her face covered,” Judge Balla said.

Elzahed’s wife-in-law, Carnita Matthews, was similarly obdurate when she was convicted, and then cleared, of making a false complaint.

The mother-of-seven claimed the highway patrol officer who booked her in 2010 for not properly displaying a P-plate tried to rip her full-face niqab from her face.

A man and a woman wearing a niqab went to Campbelltown Police Station, where the woman, whom the officer on duty believed to be Carnita Matthews, complained about the patrol officer.

They returned the next day with a TV crew and a statutory declaration, a legal document, purportedly signed by Matthews, 52, which said the patrol officer “moved closer to me in a threatening manner and moved his hand closer to my veil, where I felt he was going to rip it off my face”.

It was investigated by police professional standards who watched the officer’s in-car video which showed Matthews repeatedly calling him a racist, saying all police were racist, and telling him “you are going to be in trouble’’.

Judge Audrey Balla

Matthews was charged with knowingly making a false complaint. She pleaded not guilty in Campbelltown Magistrates Court and said it was not her signature on the stat dec.

The evidence presented in court was that she had lifted her veil to take a breath test, which came back negative. She accused him of being racist after he told her she was being booked for not properly displaying her green P-plate.

Magistrate Robert Rabbidge found her guilty and sentenced her to six months jail. He said no person other than the person who had directly spoken to the patrol officer would have been able to make the stat dec.

Matthews appealed and in the District Court, Judge Clive Jeffreys overturned her conviction.

He said he could not be sure the stat dec signature was hers. He also said the woman who delivered the complaint to police could not be identified because of her niqab.

None other than the-then Grand Mufti of Australia, Sheik Fehmi Naji El-Imam, said at the time that there was nothing in sharia law to prevent a woman showing her face to police “for the purpose and duration of identification”.

Hamdi Alqudsi’s two wives beg to differ.

Alzahed’s case continues before Judge Balla but the lead plaintiff has not returned to court since the ruling that she can’t give evidence without removing her burqa.

Two judges, two different outcomes.