In December of 2004, Judge Michael Higgins, presiding at the Victorian Civil and Administrative Tribunal, found Pastors Daniel Scot and Danny Nalliah guilty of inciting religious hatred against Victorian Muslims. This was a historic case, the first finding of religious vilification under new Victorian legislation.

The case of the ICV vs Catch the Fire is a complex one. On the one side it is said to be about vilification of Muslims. On the other side it is said to be about freedom of speech, and in particular the freedom to publicly criticize a religious ideology. The case marks a significant translation of concepts of race into the realm of religious identity and belief. As such it deserves to be studied carefully.

One aspect of Judge Higgins’ findings which seems especially likely to provoke controversy, is his approach to witnesses’ credibility. Broadly speaking, His Honour found that all seven witnesses for the complainants could be relied upon, but in one way or another he rejected all the five witnesses for the respondents, and refused the respondents’ requests to call two additional expert witnesses.

His Honour’s treatment of Pastor Daniel Scot, one of the respondents in the case, deserves careful scrutiny. Daniel Scot had given a seminar about the Qur’an which became a principal focus of the complaint before the Tribunal. In considering whether Scot had vilified Muslims, the issue of his integrity proved to be critical. Judge Higgins found that Scot was not “credible”. He stated concerning Scot “I have considerable doubt that what he told the seminar was his real beliefs about the Qur’an”: in other words he seemed to be lying. His Honour also found Scot to be opportunistic and unbalanced in his method of teaching, that he selected material because it conveyed a bad impression of Muslims.

Judge Higgins considered that because of his lack of credibility Scot could not be considered to have acted “reasonably and in good faith”. This meant that Scot had no protection from the religious exception in the Act, which protects conduct which is conducted for a “genuine” religious purpose, “reasonably and in good faith”.

Judge Higgins cited two examples of Scot’s dishonesty. One was Scot’s report that he had written three books, when in fact these were works in progress which he distributed at his seminars in photocopied form, under his birth-name Sidiqqi rather than his assumed name of Daniel Scot. Scot would not be the first author to self-publish using photocopying, to consider his books works in progress, and to use a nom de plume. However of much greater interest is the second instance of Scot’s allegedly dishonest behaviour.

Mercy for amputees?

As a second example, Judge Higgins cites Scot’s discussion of the penalty for theft. Under cross examination, Scot had said that only after a thief’s hand is cut off (Sura 5: 38) is he to be shown mercy (Sura 5:39). His Honour describes Scot’s discussion of this as “astounding”, and his reasoning “illogical and unsustainable”. He comes to this view based on an assertion from the bar table, and without hearing any evidence that Scot’s interpretations were wrong.

The matter arose because it had been put to Scot by counsel for the complainants that he could have drawn his audience’s attention to Sura 5:39, to balance the interpretation of 5:38. In other words, his listeners could have been informed that the Qur’an could be read more sympathetically, that the mercy of 5:39 might reduce the penalty of 5:38.

As it happens, Scot’s interpretation of this passage is traditional and quite accurate. Hadiths place these two verses together in a specific “context of revelation” (asbab al-nuzul): they were “revealed” during an incident involving the punishment of a female thief during Muhammad’s lifetime.

The hadiths which support this interpretation (see e.g. tafsir.com) make crystal clear that mercy is to be applied after amputation. Muhammad even declares that if his own daughter Fatimah had stolen something, he would have her hand cut off.

This is an example of a theological principle relating to Islamic hudud punishments, that the penalty atones for the crime. After punishment the person is considered purified and free of the offence, acceptable to Muhammad and to God, in this life and the next, and thus a worthy recipient of kind treatment. Indeed the Hadiths relating to these verses describe how Muhammad showed kindness to the female thief after her hand had been amputated. The correct interpretation of verse 39 is that Muslims should treat amputated thieves with kindness and mercy, as long as they have repented after punishment, and do not steal any more. Scot’s teaching in the seminar, and his replies under cross-examination, hold up very well.

His Honour’s apparent confusion over this matter is apparent when he further reports that: “Verse 40 then spells out punishment of a severe kind, e.g. losing a leg, for a further offence.” In fact verse 40 says nothing of the sort, and the only reference to this verse during the hearing was that Scot had made a mark against it for some reason in his copy of the Qur’an! It is puzzling to say the least how His Honour could have come to this conclusion about verse 40.

One reading of His Honour’s finding is that he is rejecting orthodox Islamic interpretations of the Qur’an as “illogical, unsustainable” and “astounding”. Many might find this a bold and courageous judgment.

However it is more likely that Judge Higgins’ discussion of this matter merely demonstrates a poor grasp of Islamic jurisprudence. It is hardly surprising that an Australian judge is not qualified to rule on a matter of Islamic law. What is more troubling is that Judge Higgins had been presented with considerable amounts of evidence throughout the trial from both sides concerning the fact that the Qur’an is to be interpreted in context, and that this context would include the Hadiths. Yet he apparently overlooked all this in a crucial consideration of the question of Scot’s credibility, a matter on which the whole outcome of the trial hinged. If Scot’s answers seemed to His Honour to be incomprehensible and “astounding”, this was enough to prove his dishonesty.

Another troubling aspect of this particular matter is that Judge Higgins had found Scot was too “literalistic” in his approach to the Qur’an, and that he did not attend to context. This lay at the heart of his objection to Scot’s manner of interpreting the Qur’an. Yet in relying on his own ability to interpret the text, His Honour ignores context, and does the very thing he has criticized Scot for.

His Honour also appears to rely too much on his own legal world view—that it is illogical to apply mercy after punishment. He does not take into account the theological values attached to the concept of mercy in Islam, and specifically the eternal dimension of relationship with Allah, which means that people are as much in need of Allah’s mercy after punishment as they were before.

All this goes to vindicate Scot, who rightly defends his interpretation of the verses—however counter-intuitive it sounds to an Australian judge’s ears—because he appears to have studied the matter and has taken into account the context in which the verses arose.

Did Scot warn his listeners that many Muslims do not accept his views?

This is not the only situation where it is hard to reconcile the transcript with His Honour’s findings. During cross-examination the following interchange occurs between the Queen’s Counsel Brind Woinarski and Daniel Scot:

Woinarski: You didn’t tell this audience what many, many Moslems here in Australia believe, did you?

Scot: I said that many, many Moslems don’t believe it, yes.

Yet His Honour reports this as: “He agreed that he did not tell them that there were many Muslims in Australia who did not hold the same beliefs …”

Here His Honour appears to treat the word “yes” as if it was an unqualified answer to the “yes/no” question, without putting it in the context of Scot’s whole answer. His report of the exchange thus ends up being the opposite of what Scot had said in cross-examination.

The point is of real importance, because it goes to the heart of the complaint: did Scot vilify Australian Muslims? Scot had said during the seminar that the “vast majority” of Muslims did not embrace the interpretations he was teaching of the Qur’an and because of this he warned that “we have not to be fearful of Muslim people”. However this aspect of Scot’s message during the seminar is passed over when His Honour wrongly reports “He agreed that he did not tell them …”

Muslim demons or demonic Muslims?

Scot’s credibility is also undermined by the way His Honour reports a list of statements he was alleged to have made during the course of the seminar. What is missing is an acknowledgment that several of these “offensive” statements were in fact reports from the Qur’an and Hadiths.

This omission verges on the absurd when His Honour reports Scot as stating that “Muslims are demons” (paragraph 383.6). Such a statement, if true, would indeed give a very negative impression of Scot’s credibility. In reality Scot had reported that according to the Qur’an, “a group of demons — in Arabic it’s called a ‘jinn’ … became Muslim”. (This relates to Sura 46.)

In His Honour’s findings “a group of jinns became Muslims” becomes “Muslims are demons”. This entirely wrong report was picked up by the media all around the world. For example a radio talkback host in Melbourne was abusing Scot within hours of the ruling being handed down, calling him an “idiot” for saying this very thing.

In fact Scot said nothing of the sort. If His Honour had not been silent about the fact that Scot was speaking about the Qur’an, such public vilification might have been avoided.

Conclusion

This was an exceedingly complex case, and more could be said about His Honour’s handling of Scot’s evidence. His Honour’s findings on the credibility of other witnesses also deserve scrutiny.

Also of interest are Judge Higgins’ rulings on Christian and Islamic theology. His Honour found, for example, that Wahhabism is “fundamentalist” and irrelevant to the Australian Islamic scene, and despite his repeated references to Muhammad as “the Prophet”, he found that the Qur’an is an “ancient historical document” whose violent verses relate to contexts which “have no relevance to the 21st Century.”

Setting all such matters to one side, what is sadly ironic about the Victorian Racial and Religious Tolerance Act is that it incites vilification. A complainant will seek to show that the respondent’s conduct has threatened religious harmony, that they have vile intentions, that they are inciting hatred and are dishonest. In this respect, and to this point of the legal proceedings, the Islamic Council has succeeded in pursuing just such a case against Pastor Daniel Scot.

It is abundantly clear that such proceedings do not promote religious harmony. In the case of the Islamic Council of Victoria vs Catch the Fire, Danny Nalliah and Daniel Scot, incompatible religious world views have been in collision. There were theological sparks flying all throughout the case. In the end, Judge Higgins came to his decision in part by finding one side not to be credible, and in part by declaring aspects of the Qur’an to be irrelevant to 21st century life. However, in the manner of reaching this conclusion, his rulings raise more questions than they answer, closure has not been achieved, and further damage has been done to religious harmony. It seems inevitable that the decision will be appealed.

The Act itself states that it is meant to be interpreted in a way which promotes conciliation and resolves tensions between groups in the community. This case has demonstrated some profound difficulties faced by our legal system in achieving this admirable goal.

It is high time for the Victorian government to review the religious aspects of this Act, and to consider whether they could be removed altogether, making it simply a Racial Tolerance Act.

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Mark Durie holds a PhD in linguistics with a specialization in the language and culture of the Acehnese. He is Vicar of St Mary’s Caulfield and writes regularly on matters of comparative theology. Although he was called as an expert witness in this case, His Honour did not allow his testimony into evidence.