ICC error allows Harbhajan to escape ban

 

By , 31 Jan 2008 Daniel Brettig is a Roar Pro

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Harbhajan Singh in the court room prior to the start of the appeal hearing - AAP Image/POOL/Getty Images, Robert Cianflone
A colossal International Cricket Council foul-up, a more rigorous judicial process and wavering Australian testimony allowed Harbhajan Singh to escape a ban for abuse of Andrew Symonds.

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These were the primary conclusions to be taken from ICC appeals commissioner Justice John Hansen’s lengthy explanation of the verdict that caused considerable displeasure among Australian players but ensured the remainder of India’s tour would be played out.

Hansen denied any deal had been struck between legal counsel for the Australian and Indian players to downgrade the charge, even though the mutually agreed change from a level three to a less serious level two offence under the ICC code of conduct essentially voided Symonds’ claim he had been racially vilified as a “big monkey”.

Clearly and indignantly asserting his independence, Justice Hansen was critical of all parties involved in the confrontation at the SCG, saying “their actions do not reflect well on them or the game”.

He was particularly perturbed by the fact the alleged racial abuse stemmed from Symonds reacting angrily to Harbhajan patting fast bowler Brett Lee on the backside in recognition of a good delivery.

Of Symonds’ response that “a Test match is no place to be friendly with an opposition player”, Justice Hansen said “If that is his view I hope it is not shared by all international cricketers. It would be a sad day for cricket if it is”.

Once the charge had been downgraded due to a lack of conclusive evidence to prove that Harbhajan had used the word “monkey”, the spinner might still have received a one Test ban due to his list of prior offences.

However, Hansen said ICC error had meant he was not made aware of Harbhajan’s most serious past indiscretion, when in November 2001 he and three other Indian players had been fined 75 per cent of their match fees and given a suspended one Test ban for dissent.

The offences took place during the second Test against South Africa at Port Elizabeth, where the one-Test suspension of Virender Sehwag for over-appealing by match referee Mike Denness was opposed by India.

With the support of their hosts the Indians selected Sehwag for the next Test regardless, and the match was stripped of Test match status after Denness was locked out of the ground.

“If I had been aware of the serious transgression in November 2001 I would have required more extensive submissions as to the offence in mitigation which could have led to a different penalty,” Hansen said.

“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.”

Hansen’s conclusion there was insufficient evidence to be sure Harbhajan had called Symonds a monkey hinged on his weighting of Sachin Tendulkar’s testimony.

Unlike ICC match referee Mike Procter, who had overseen the original and less formal hearing, Hansen decided that Tendulkar – who he called “an impressive witness” – did hear the exchange between Symonds and Harbhajan, and felt his version of events was more substantial and therefore reliable than those of the Australians.

Hansen said Michael Clarke in particular had given evidence that did not coincide favourably with other accounts.

“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,” he said.

“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.”
Hansen was also critical of the lack of formality and rigid transcription at the original hearing, recommending that such precautions be taken in future.

Bizarrely, Hansen said in his closing remarks he had been assured by India’s legal advocate Vasha Manohar the Indian Cricket Board (BCCI) never intended to abandon the tour if the appeal was unsuccessful, despite a wave of public pronouncements to the contrary from BCCI president Sharad Pawar down.

Key findings from Justice John Hansen’s judgment of Andrew Symonds v Harbhajan Singh:

ON WHETHER HARBHAJAN CALLED SYMONDS A MONKEY

“I have not been persuaded to the necessary level required that the words were said. I am not sure they were.”

ON SYMONDS’ INTERVENTION AFTER HARBHAJAN HAD MADE CONTACT WITH BRETT LEE

“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.”

ON ICC ERROR PREVENTING HIM FROM GAINING A FULL VIEW OF HARBHAJAN’S DISCIPLINARY RECORD

“At the end of the day Mr Singh can feel himself fortunate that he has reaped the benefit of these database and human errors.”

ON INDIAN THREATS TO ABANDON THE TOUR

“(India’s legal advocate) Mr Vasha Manohar has assured me that that is not the position of the BCCI and it is no more than media speculation and exaggeration.”

© AAP 2012
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