19 November 2010

A Traffic Stop, A Burqa, A False Report, and 6-Months Jail...

This was bound to happen sooner or later; a burqa-clad woman claiming that an overly-zealous police officer had attempted to remove her burqa forcibly in order to identify her. It is unfortunate that a false report was lodged to suggest that an incident like this took place. There are many in the community who struggle with the idea of how to reconcile respect for one's religious views and the need to be able to see people's faces as a means of identifying them.


Carnita Matthews is a 46-year-old Muslim mother of seven. She is also a P-Plate driver. P-Plates are required, by law, to be displayed on cars being driven by those who have a provisional license. The failure to display P-Plates or failure to display them correctly is an offense.

Matthews was pulled over for a random breath test by Senior Constable Paul Fogarty in the southwestern Sydney suburb of Woodbine. By all accounts, except for the account of Matthews and her legal team, Fogarty was going about his duties as a police officer. During the course of this breath test it became apparent to Fogarty that Matthews was a P-Plater and that she was not displaying her P-Plates in accordance with the law. So, Fogarty fined Matthews for the infringement. Matthews then lodged a complaint three days later that suggested that Fogarty had been aggressive and had attempted to remove her veil.

The complaint was in the form of a statutory declaration. A statutory declaration is a legal document and there are relatively severe penalties for making false declarations, including jail time. Unfortunately for Matthews there is a police car video of the events as they unfolded. The video shows that at no time did Fogarty attempt to touch Matthews or remove her veil. In fact, the video shows Matthews raising her voice to Fogarty and telling him that he is a racist and that all police officers are racist. Matthews also suggests that Fogarty's problem is that he saw here wearing a burqa and assumed certain things about her.

Matthews specific words were "You look at me and see me wearing this and you couldn't handle it. All cops are racist."

The case went to the Campbelltown Local Court. The case was heard before Magistrate Robert Rabbidge. Magistrate Rabbidge was unequivocal in his interpretation of the events based on the evidence before him. MMagistrate Rabbidge stated that Matthews made a false statement and that this was a crime that was "deliberate, malicious and ruthless". He went on to say "There is not a shadow of doubt in my mind, beyond a reasonable doubt, that she knew that the complaint she was making was false."

It would seem that Magistrate Rabbidge's primary concern relates to how the system would or would not cope with a continual barrage of false declaration, and in the Magistrate's view "The system would collapse, of course, if people are making false and wrong complaints to authorities."

Magistrate Rabbidge then sentenced Matthews to six-months in jail. The defense, as was expected, lodged an immediate "all grounds" appeal to have the matter heard at the District Court. Matthews was then granted bail pending the appeal.

However, before the sentence was handed down, the defense did make a novel and creative legal argument that the case had to be dismissed because this was a case of mistaken identity and the police had no way of proving that the person who lodged the statutory declaration was in fact Matthews. In an attempt to illustrate this point, Matthews attended the Local Court hearing with a friend clad in a burqa that was exactly the same as the one Matthews was wearing. The point being to challenge all those in attendance to definitively identify her as the complainant and not just another burqa-wearing woman.

The argument failed because the police were able to submit signatures that proved that Matthews had signed the statutory declaration.

The most interesting point going forward relates to Magistrate Rabbidge's assertion that police have an onerous duty in dealing with the public and that "There is an absolute and clear duty on police to satisfy who they are dealing with." This would suggest that police have a right to request veiled women to make it possible for police to identify them if such a request is made.

I wonder if veiled women refuse to remove the veil, for the purposes of identifying them, will be arrested?

On the practical front. I am wondering how a burqa-wearing woman goes about getting a driver's license if it is impossible to identify them because of their chosen attire? I wonder whether incidents like these will drive technological advancements that will allow hand-held retinal scanning technology to be used by police to identify women wearing a full-face veil?

I was eavesdropping on a conversation on the train the other day that was discussing the pros and cons of wearing a burqa with respect to identification and security. One of the people put forward an idea that I have heard a few times before. In essence, it goes like this: "if you are not allowed to wear a motorcycle helmet into a bank for security reasons, then how do you allow a burqa-wearing woman to enter a bank?" This person then went on to provide a range of possibilities including that the burqa-wearing woman might not be a woman at all, but rather a man intent on robbing the bank.

I was smiling to myself as I listened (oops eavesdropped) on this conversation. It was not all that long ago that  Noordin M Top, now dead terrorist, was known to be wearing a burqa as a means of avoiding detection. If I can find the link to that old story I will post it later.

But, I digress. This case is one I will try and follow through the appeal process. It is a case that is likely to allow for much heated discussion. It is also a case that is likely to polarise community views on how Australia want to go forward and what levels of tolerance we have as a "multicultural" community. There are already plenty of people lining up on either side of this fight. There will be those old Pauline Hanson supporters that will be advocating that Australia take the French approach and legislate to ban the burqa. They are likely to get some pretty solid support from the likes of Fred Nile of the Christian Democratic Party, particularly as he has already tried to introduce a bill to the NSW parliament to ban the burqa.

These are indeed interesting times in which we live!

3 comments:

H. Nizam said...

Hi Rob,

That's interesting.

You know what? I personally think that people should show their faces in public, especially when they are dealing with police, banks etc.
Women wearing veil that covered most part of her face is like men wearing helmet that covered his face.
If they appear like that at an ATM booth I would surely be frightened.

Rob Baiton said...

@ Harry...

I am glad to have been of service.

Trying to balance religious freedom with safety and security has become a dilemma, hasn't it?

I do not know about frightened, but it certainly might give pause for thought and then a little chuckle as I walked away from the ATM (this is especially so after it was reported Noordin M Top's favourite disguise was a burqa).

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