Crucial observations

Members of the Indian and Australian cricket teams before the hearing.-

Justice Hansen refers to Symonds’ testimony, where the cricketer himself feels Harbhajan’s behaviour does not merit a level 3.3 offence, before erasing Match Referee Mike Procter’s ruling, writes S. Dinakar.

Justice John Hansen’s verdict on Harbhajan Singh’s three-Test ban for an alleged racist abuse of Andrew Symonds in the second Test in Syndey has thrown up questions that the establishment would ignore at its own peril.

The logic behind the Appeals Commissioner reducing Harbhajan’s offence from Level 3.3 of the ICC Code of Conduct to a lesser punishment cannot be faulted. In his exhaustive judgment, Justice Hansen has come up with strong reasons for doing so.

He believes different cultures, languages and accents can lead to misunderstandings on the arena when the situation becomes stressful.

The Appeals Commissioner points out that there remains considerable doubt about what Harbhajan actually said to Symonds since he used a lot of words in his native language; words that could have been misunderstood.

Justice Hansen refers to Symonds’ testimony, where the cricketer himself feels Harbhajan’s behaviour does not merit a level 3.3 offence, before erasing Match Referee Mike Procter’s ruling.

He highlights the fact that proper and complete transcripts were not maintained during Procter’s hearing after the conclusion of the ill-tempered Sydney Test. What Symonds testified during that hearing would have made interesting reading.

There have been contradictions in Symonds’ statements. For instance, the all-rounder told an Australian newspaper soon after the Sydney incident that he had seen Harbhajan hit Brett Lee on the back after the bowler had sent down a delivery. He had, then, responded to the Indian’s act.

Justice Hansen, however, reveals that Symonds admitted to provoking the incident since he believed he saw no reason for friendship between the players at the highest level. The video tapes of the incident have shown Harbhajan patting Lee on the back, after the 116th over of the Indian innings on day three, in appreciation of an excellent yorker. Justice Hansen questions Symonds’ attitude towards the game.

The honoured justice is also pained that the ICC did not provide him with complete documents pertaining to Harbhajan’s earlier breaches of the ICC Code of Conduct.

Justice Hansen refers to one omission in particular that could have resulted in him delivering a stronger verdict than a level 2.8 offence (fining Harbhajan 50 per cent of his match fee and not enforcing a ban) against the Indian.

The glaring miss happens to be the controversial match in Port Elizabeth in 2001 when Tendulkar is pulled up for tampering with the ball and five other Indians are handed out harsh sentences. Harbhajan is fined 75 per cent of his match fee and handed a one-Test suspended ban. The furore in India over Match Referee Mike Denness’ decisions results in the third and final Test in South Africa losing official status.

The ICC admits to its mistake. Its CEO, Malcolm Speed says the lapse should not have occurred. Cricket Australia is disappointed and conveys as much to the ICC.

Symonds says he is shattered by the verdict. “Being called unsporting makes my blood boil,” he says in his column in an Australian newspaper. Skipper Ricky Ponting backs his man. Harbhajan and Team India are pleased with Justice Hansen’s judgment.

Here are some of Justice Hansen’s crucial observations.

* Symonds’ response when Harbhajan’s counsel, V. R. Manohar, asks “I put it to you that apart from the other Indian abuses he said to you the words ’teri maki,’ the Australian replies, “Possibly, I don’t recall, I don’t speak that language.”

* On what Symonds said about the level of Harbhajan’s offence: “In the course of submissions I raised directly with counsel for Cricket Australia, Mr. Ward, what was the level of offence that Mr. Symonds took from what was said to him. He confirmed that Mr. Symonds took the language to be offensive and seriously insulting but did not consider it fell under the requirements of 3.3 (of the ICC Code of Conduct). Given that is the view of the complainant it is hard to see how the requisite elements of 3.3 could be satisfied.”

* On whether an “ordinary person” would have been offended in a 3.3 sense. “That again requires a look at context. Mr. Singh had innocently, and in the tradition of the game, acknowledged the quality of Mr. Lee’s bowling. That interchange had nothing to do with Mr. Symonds but he was determined to get involved and as a result was abusive towards Mr. Singh. Mr. Singh was, not surprisingly, abusive back. He accepts that his language was such as to be offensive under 2.8. But in my view even if he had used the words ’alleged’ an ’ordinary person’ standing in the shoes of Mr. Symonds who had launched an unprovoked and unnecessary invective laden attack, would not be offended or insulted or humiliated in terms of 3.3.”

* On Symonds’ response on Harbhajan’s gesture of appreciation towards Lee’s bowling: “Mr. Symonds appears to be saying that he finds it unacceptable that an opponent makes a gesture that recognises the skill of one of his own team-mates. To a question from Mr. Manohar, Symonds replies, “My objection was that a Test match is no place to be friendly with an opposition player, is my objection.” (Hansen adds) “If that is his view I hope it is not one shared by all international cricketers. It would be a sad day for cricket if it is.”

* On whether the words Big Monkey were used: “Mr. Singh himself gave evidence and he denied using the words “monkey” or “big monkey.” He said that after he patted Mr. Lee acknowledging his good bowling there followed the exchange above initiated by Mr. Symonds and that he responded angrily. He accepted he used offensive words including the “teri maki” in his native tongue but he did not use the word “monkey”.”

* On whether Sachin Tendulkar was in a position to listen to Harbhajan’s words (Procter had said Tendulkar could not hear what Harbhajan said): “I have of course had the advantage of seeing extensive video footage which in fact establishes that Mr. Tendulkar was within earshot and could have heard the words. Indeed it is now clear Mr. Tendulkar did hear the exchange but not the words alleged. Contrary to reports that Mr. Tendulkar heard nothing he told me he heard a heated exchange and wished to calm Mr. Singh down. His evidence was that there was swearing between the two. It was initiated by Mr. Symonds. That he did not hear the word “monkey” or “big monkey” but he did say he heard Mr. Singh use a term in his native tongue “teri maki” which appears to be pronounced with a “n”. He said this is a term that sounds like “monkey” and could be misinterpreted for it.”

* On two “impressive witnesses” Tendulkar and Matthew Hayden: “I remind myself that an honest witness remains a witness who may be mistaken. In my view there remains the possibility of a misunderstanding in this heated situation. As well it is not without significance that the Australian players maintain other than Mr. Symonds that they did not hear any other words spoken only the ones that are said to be of significance to this hearing. This is a little surprising in the context where there was a reasonably prolonged heated exchange. Indeed Mr. Clarke went so far as to say that he did not hear Mr. Symonds say anything. Given Mr. Symonds’ own acceptance that he initiated the exchange and was abusive towards Mr. Singh, that is surprising. This failure to identify any other words could be because some of what they were hearing was not in English.”

Justice Hansen believes the video evidence and the stump microphone did not take the matter much further. “They certainly pick up some words and appear to include, although this is not conclusive, Mr. Symonds saying “are you calling me a monkey”. There are also words from Mr. Hayden to the effect that “it doesn’t matter mate, it’s racial vilification mate it’s a shit word and you know it”. But they do not assist in any way in determining what Mr. Singh himself said. Nor can his response to Mr. Symonds or Mr. Hayden be gauged. What is apparent when umpire Benson put the issues to him he immediately denied them.”

* On not being informed properly by the ICC about Harbhajan’s earlier breaches of the Code of Conduct: “I need to add something about the penalty I imposed. In imposing that penalty I took into account Mr. Singh’s previous transgressions as advised to me by counsel assisting Mr. Jordan. I was told that Mr. Singh had one infraction in April 2003 for what was the equivalent to a 2.8 offence under the present Code. That was for an abusive comment made to the umpire when he was fined 50 per cent of his match fee. That was the only infraction that Mr. Jordan had been advised of by the ICC. After the penalty was announced I was made aware that in fact there were three further matters I had not been informed of. Overnight I have given earnest consideration to the Code of Conduct to see if it empowers me to reopen the sentencing process. Regrettably I have concluded that I cannot do so and the penalty imposed by me must stand. At the end of the day Mr. Singh can feel himself fortunate that he has reaped the benefit of these database and human errors. But judicial experience shows that these are problems that arise from time to time.”