A Sydney Muslim woman who lost her terrorism raid lawsuit suffered a miscarriage of justice as she was not allowed to give evidence with her face covered, an appeal court has been told.
The "deeply-held religious beliefs" of Moutia Elzahed meant she did not give "crucial" evidence about her version of what police did during the September 2014 raid, her lawyer, Jeremy Kirk SC, argued on Monday in the NSW Court of Appeal.
Ms Elzahed, who lost her civil action and was ordered to pay $250,000 in police legal costs, is challenging the trial judge's ruling that she could not give evidence while wearing a niqab.
Her then-lawyer told the female judge it was against her religion to reveal her face to men.
As well as claiming the judge erred in not letting her give evidence in a niqab, Mr Kirk says she should have been allowed to testify via another method, such as a screen, that revealed her face to women but not to men.
But Dr David Kell SC, for the State of NSW, said no application was made by her then-lawyers for the evidence to be given another way.
Mr Kirk acknowledged the parties had been in "deep and substantially unchartered waters", noting there was only one other Australian case in the WA District Court.
He understood the only appeal ruling in the world involving the niqab was in Ontario.
Dr Kell said in contrast to countries such as Canada, Australia had "no positive right to freedom of religion" and the fundamental right here was for a fair trial to all parties.
Mr Kirk said two police officers testified at the hearing as to what happened in the bedroom at Ms Elzahed's house during the raid, so her version was always going to be crucial, Mr Kirk said.
But he said the trial judge did not appear to recognise the significance that Ms Elzahed stood to lose her case unless she gave evidence.
"The fact is we are dealing with very important issues here about a witness giving evidence and about due respect for religious beliefs," he said.
The judge had ruled that she would be impeded in her ability to assess Ms Elzahed's reliability and credibility if she would not see her face while she testified.
In the broader sense, the case would deter some Muslim women from being involved in criminal and civil proceedings, Mr Kirk said.
But Dr Kell said "the giving of evidence by a person wearing a face covering poses significant challenges to a fair hearing".
He referred to the impact on cross-examination for a lawyer unable to see the witness's face and expressions and also on a judge or a jury.
