Justice John Hansen says Harbhajan Singh was cleared of racially abusing Andrew Symonds due to lack of evidence
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Lack of sufficient evidence, a more rigorous judicial process and an inexplicable botch-up on the part of the ICC allowed Harbhajan Singh to get away with a 50% fine, it emerged after Justice John Hansen read out the reasons for his verdict a day after the hearing in Adelaide.
Andrew Symonds' inability to conclusively say whether Harbhajan Singh had used the word monkey or a Hindi abuse, and his admission that the language did not fall under the requirements of a level 3.3 offence played a crucial part.
But Hansen also said Harbhajan had "reaped the benefit" of database and human errors, with his offence in November 2001
- when he was fined 75% of his match fee and given a suspended sentence of one Test - not being made available to the assisting counsel at the time of sentencing. He said he "would have required more extensive submissions as to the offence in mitigation, which could have led to a different penalty".
In a 22-page document that detailed the reasons for his decision, it emerged that Sachin Tendulkar's word could have had a big role to play too. Unlike Mike Procter, who thought Tendulkar was not in a position to hear what was uttered, Hansen said "extensive video footage" establishes that Tendulkar "was within earshot and could have heard the words".
Tendulkar said he heard Harbhajan "use a term in his native tongue "teri maa ki" which appears to be pronounced with an "n". He said this is a term that sounds like "monkey" and could be misrepresented for it."
Symonds couldn't recall if he had heard Harbhajan use that particular Hindi abuse and accepted that it was a possibility. He also didn't find favour with the judge with his explanation for abusing Harbhajan after he had patted Brett Lee on the back side. Symonds said he had objected because "a Test match is no place to be friendly with an opposition player" but Hansen dismissed that explanation ("If that is his view I hope it is not one shared by all international cricketers").
Michael Clarke's account was critical, considering that it did not coincide favourably with the rest. "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," Hansen 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. This failure to identify any other words could be because some of what they were hearing was not in English."
Hansen's report included the statement of agreed facts that contained the signatures of the seven players concerned. He also pointed out to the "agreement" between Symonds and Harbhajan in Mumbai last year, adding that it was Symonds who had breached it by "provocative abuse".
Towards the end of his statement, though, Hansen admitted that the ICC had advised his assistant counsel, John Jordan, of only one of Harbhajan's previous infractions, a Level 2.8 offence back in April 2003 when he made an abusive comment to an umpire. However, it was only after his verdict that Hansen was made aware of the three other cases involving Harbhajan.
The first, a Level 1 offence in 1998, was overlooked because offences under the old Code of Conduct were not included in the ICC database. The second, a Level 1 offence in November 2005, was not made available because of a "human error". Hansen said the extent of his punishment wouldn't have changed even if he knew about the first two but added that knowledge of the third, a Level 2 offence in November 2001, "could have led to a different penalty".
Hansen denied any deal had been struck between legal counsel for the Australian and Indian players to downgrade the charge. He was also critical of all parties involved in the confrontation in Sydney, saying "their actions do not reflect well on them or the game".
Siddhartha Vaidyanathan is an assistant editor at Cricinfo