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Hansen bases verdict on possible misunderstanding

S. Dinakar

Differences of language, culture and accent taken into account

— Photo: AFP

DELIVERING JUSTICE: Justice John Hansen reads out his statement on the rescinding of the three-match ban imposed on Harbhajan Singh at the Adelaide Federal Court on Wednesday.

Adelaide: Justice John Hansen, the ICC Appeals Commissioner, has taken into consideration the possibility of a misunderstanding developing on the field of play in a heated situation due to different languages, cultures and accents while delivering his verdict on the Harbhajan Singh appeal case.

In his 22-page judgment released on Wednesday evening, Justice Hansen has explained his reasons for clearing Harbhajan Singh of the charge of racially abusing Australian all-rounder Andrew Symonds on the third day of the second Test in Sydney.

Element of doubt

There, according to Justice Hansen, remained more than an element of doubt about what was actually said by Harbhajan.

When the counsel for Harbhajan, V.R. Manohar, asked Symonds, “I put it to you that apart from the other Indian abuses he said to you the words teri maki, the Australian replied, “Possibly, I don’t recall, I don’t speak that language.”

Justice Hansen points out, “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.”

For objective interpretation, Justice Hansen also took into account whether an “ordinary person” would have been offended in a 3.3 sense. He says, “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.

Says Justice Hansen, “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 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.”

Tendulkar’s evidence

Contrary to what Match-Referee Mike Procter had said in his report, Justice Hansen observes Sachin Tendulkar was indeed in a position to hear the words.

“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.”

Adds Justice Hansen, “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.

The versions of the two “impressive witnesses,” Tendulkar and Matthew Hayden were different but Justice Hansen says, “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.”

He notes that had he had been correctly informed by the ICC about Harbhajan’s earlier breaches of the Code of Conduct, the punishment imposed by him could have been different.

Transgressions

“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.”

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