Islamic State recruiter's wife Moutia Elzahed may be first charged under disrespectful behaviour laws.

By Natasha Robinson

A Muslim woman who refused to stand for a judge is potentially facing criminal charges in New South Wales.

It is the first test of tough new legislation that makes it an offence to disrespect a court in the state.

NSW Attorney-General Gabrielle Upton has asked the state’s Solicitor-General to consider whether mother-of-two Moutia Elzahed should be charged with a summary offence under the new laws, which came into force in NSW in September.

The laws were brought in following several high-profile cases in NSW and Victoria, in which defendants refused to follow court conventions of standing as a judge enters the room and leaves the bench.

Ms Elzahed is the wife of convicted Islamic State recruiter Hamdi Alqudsi, who is serving a minimum six years’ jail time for arranging seven men to travel to Syria.

The family took civil action against the Commonwealth and NSW Governments for assault, false imprisonment and wrongful arrest following a high-profile terror raid in September 2014.

Ms Elzahed claims she was punched in the ear, eye and head during the raid in the early hours of September 18, 2014.

Her teenage sons Hamza George and Abdulla George also allege they were jostled violently during the raid, during which they were restrained and handcuffed in their bedrooms.

Police defended the claim, arguing reasonable force was used.

Where did this all start?

Ms Elzahed was involved in an initial stand-off with District Court judge Audrey Bella during the case, when she refused to remove her niqab — a full-face veil — when entering the witness stand.

Judge Bella offered the mother-of-two the opportunity to give evidence by video-link from another room, but Ms Elzahed refused as her face would still be seen by male lawyers and barristers in the courtroom.

Judge Bella also offered to close the court, but Ms Elzahed declined the offer and then elected not to attend court at the time she was scheduled to give evidence.

A second stand-off played out on Wednesday when Judge Bella challenged Ms Elzahed for failing to follow court protocol of standing for the judge.

Ms Elzahed’s barrister Clive Evatt said his client may not have properly understood court protocol.

“There’s no big sign on the door you must stand up. It’s a matter of practice and courtesy, but she may not have known that,” Mr Evatt said.

“She says under strict Muslim law you can’t stand up for anyone apart from Allah.

“But she may not have known that it’s pretty well compulsory to stand up for the judge, so she might have a reasonable explanation for that.”

Mr Evatt said he had spoken to his client and she was “very concerned” at the prospect of criminal charges.

“She’s very concerned — not defiant, very concerned. She doesn’t want to face charges,” he said.

What’s the disrespectful behaviour law?

The NSW Parliament passed the Courts Legislation Amendment (Disrespectful Behaviour) Bill 2016 in early September.

The law is the first of its kind in Australia and it applies to all courts in NSW except the Children’s Court.

A proved summary offence of showing disrespect to the court attracts a maximum penalty of 14 days in jail or a $1,100 fine.

The trigger for the new laws was a 2015 District Court trial, which exposed what the NSW Government believed were weaknesses in meeting the required threshold in prosecuting ordinary laws of contempt of court.

NSW Attorney-General Gabrielle Upton issued a statement following her referral of the Elzahed matter to the Solicitor-General.

“Everyone who appears in court must abide by the rules,” Ms Upton said.

“The law reflects our community’s expectation that everyone who comes before a court show respect for the judge and the court.

“Not standing up in court or refusing to follow a reasonable request fits that category.”

Is contempt of court enough?

Contempt of court is a common charge when those giving evidence or appearing or observing court proceedings refuse to obey a judge’s instructions.

But standing in court has been a longstanding matter of court procedure.

The new disrespectful behaviour law legislates that procedure in line with what the Government says are community expectations that citizens and those entering courts show respect to the institution and the judiciary.

The NSW Greens opposed the legislation in Parliament.

NSW Greens justice spokesman David Shoebridge said he was concerned about the Elzahed case.

“We always feared that these laws would be used effectively as a political weapon and politicise the courts and that’s exactly what we’ve seen here,” he said.

“Courts have ample powers to deal with contempt and have effectively dealt with it for centuries.
“Using the law like this risks creating a false martyr and actually aggravating the problems that the courts face. It gives people who show disrespect effectively a megaphone.”

Sydney’s Daily Telegraph newspaper splashed on the story Friday morning following Ms Upton’s referral.

“We’ve seen a political campaign run by tabloid newspapers and shock jocks effectively forcing the Government’s hand,” Mr Shoebridge said.

The NSW Solicitor-General must now decide whether to prosecute the Elzahed matter.

This post originally appeared on ABC News.