'Teri Maki'

Appeals Commissioner The Hon. Justice John Hansen insisted that "Itwas not the ICC that reduced the charge against Mr Singh from a level 3.3 offence toa 2.8. That was my decision and my decision alone. I made that decision on thebasis of my factual findings and my legal interpretation of the Code of Conduct. Aninterpretation I may add that counsel were by in large in agreement with. I also wishto disabuse the media of any notion that there was some "sort of deal".... It is incorrect tosuggest that there was some sort of an agreement reached between Australian andIndian cricket authorities that I simply rubber stamped." He also of coursepointed out that had he been made aware of Harbhajan Singh's earliertransgressions, the penalty imposed may have been different: Mr Singh can feel himselffortunate that he has reaped the benefit of these database and human errors. Butjudicial experience shows that these are problems that arise from time to time."

Full Text

BEFORE THE INTERNATIONAL CRICKET COUNCIL APPOINTED APPEALS COMMISSIONER

IN THE MATTER OF an Appointment of an AppealsCommissioner to determine an appealagainst the findings of ICC matchreferee Michael Procter Esq ("TheAdjudicator"), dated 7 January 2008

AND

IN THE MATTER OF an adjudicated breach of the ICC Codeof Conduct during the second testmatch between India and Australia on 4January 2008 at the Sydney CricketGround, Sydney, Australia

AND

IN THE MATTER OF an appeal by Mr Singh

Before: Appeals Commissioner The Hon. Justice John Hansen

Appearances: Mr John Jordan SC, counsel assisting Advocate Mr Vasha Manohar for Mr Harbhajan Singh and the BCCIMr Brian Ward for Cricket AustraliaHearing Date: 29 January 2008Decision: 29 January 2008

Full written reasons 30 January 2008

DECISION

[1] Mr Singh appeals against the decision of the match referee, Mr MichaelProcter, who found him guilty of a charge against the ICC Code of Conduct for Players and Team Officials, Clause CC Rules of Conduct Level 3, sub-clause 3.3.On being found guilty he was banned from three test matches.

Background

[2] The second cricket test between India and Australia commenced at the SydneyCricket Ground on 2 January 2008. On 4 January 2008, at the conclusion of the116th over, one of the Indian batsmen, Mr Harbhajan Singh, patted the Australianbowler, Mr Brett Lee on his backside. Another Australian player, Mr AndrewSymonds, considered it appropriate to intervene on behalf of his team mate. Therethen followed a heated exchange between Mr Singh and Mr Symonds. Mr Symondsalleged that Mr Singh called him either a "monkey" or a "big monkey". This wasreported to the Australian Captain, who considered it his duty to refer it to theumpires. The umpires considered it their duty to report it as a breach of paragraph3.3 of the Code of Conduct. The matter was referred to the match referee whocarried out a hearing which was, by agreement, delayed until the end of the match.Mr Procter after hearing from various witnesses was satisfied beyond reasonabledoubt "that Harbhajan Singh did say these words" being "monkey" or "big monkey".Mr Procter went on to say he was satisfied beyond reasonable doubt that the use ofthe words insulted or offended Mr Symonds on "the basis of his race, colour orethnic origin".

[3] Pursuant to Clause 11(b) of the Code of Conduct the Indian team manager, MrChethan Chauhan, on behalf of Mr Singh, lodged a written Notice of Appeal onJanuary 7, 2008. In accordance with Clause 11(c) the ICC’s legal counsel, MsUrvasi Naidoo, appointed me to hear Mr Singh’s appeal. By this time two of thewitnesses, the umpires Messrs Bucknor and Benson, had left Australia. Because ofthe logistical difficulties associated with assembling all witnesses, and because of theintervention of the third and fourth tests, both the BCCI and Cricket Australiarequested that I delay the hearing date until after the fourth test. In any event I wassatisfied the matter could not be disposed of within the seven days of appointment.This was not simply because of the difficulties associated with assembling thenecessary witnesses.

[4] In order to ensure a fair hearing for Mr Singh, I determined in this case that ahearing with the participants present should be organised. This necessitated theappointment of legal counsel, the finding of a suitable venue for such a hearing andobtaining suitable secretarial assistance. Self-evidently, such matters take sometime. For those reasons I was content to accede to the request to adjourn the matterto 29 January.

[5] Clause 11(f) of the Code of Conduct reads:

The process for conducting the hearing shall be left to the discretion of theAppeals Commissioner. Oral representations (either in person or bytelephone conference as determined in the discretion of the AppealsCommissioner) should be permitted unless there are good reasons for relyingon written submissions only. Where it is available, he shall view video tapeof the incident which is the subject matter of the appeal.

[6] In this case I conducted a telephone conference with counsel representing allinterested parties. I issued a Minute setting down the procedure to be adopted at thehearing. This involved conducting a hearing De Novo and evidence being adducedfrom those witnesses who gave evidence before Mr Procter. However, to someextent this was overtaken by events at the commencement of the hearing. Theappellant, Mr Singh and the witnesses Messrs Ponting, Symonds, Clarke, Gilchrist,Hayden and Tedulkar had signed an agreed statement of facts that was tendered tothe court. I reproduce the statement of facts in the exact form in it which it wastendered.

Statement of Agreed Facts

During the 116th over on Day 3 of the Sydney Test, Harbhajan Singh made friendlycontact with Brett Lee. At the end of the over while the umpires were changing endsand the fields was crossing over to their new positions, Andrew Symondsapproached Harbhajan Singh and told him that he had no friends amongst theAustralians (he admits he used the word ‘fuck’ or a derivation thereof). Singh usedsimilar language to Symonds and neither took offence at that stage.However the exchange caused Singh to become angry and he motioned to Symondsto come towards him. Singh then said something to Symonds. There is a dispute asto what was said. However all of the players who gave evidence to the hearingbefore Match Referee Procter of what was said between Harbhajan Singh andAndrew Symonds namely, Harbhajan Singh, Andrew Symonds, Mathew Hayden andMichael Clarke, are all clearly of the view that in the circumstances, HarbhajanSingh used language that was (and intended by Singh to be), offensive to AndrewSymonds. Symonds took immediate offence at the language and behaviour of Singh.After the exchange between Singh and Symonds, Michael Clare spoke to umpireMark Benson and complained about Singh’s behaviour, Clarke then told his captainRicky Ponting what he had heard. Ponting went to Umpire Benson and told him thathe had been informed by Clarke of the use by Harbhajan Singh of offensive languagetowards Andrew Symonds. On his way back to the slips position Ricky Pontingspoke with Harbhajan Singh, Sachin Tendulkar then approached Ponting and Singhand asked Ponting to allow him to manage the situation.

Ricky Ponting then went into the slips. During over 117 Mathew Hayden informed Ponting that he had heard Harbhajan Singh use offensive language towardsSymonds at the conclusion of the preceding over. At the end of Over 117 Pontingwent of the field and told the Australian Team Manager (Steve Bernard) about theincident.

Harbhajan Singh (Signature),
Ricky Ponting (Signature),
Andrew Symonds(Signature),
Adam Gilchrist (Signature),
Sachin Tendulkar (Signature),
MichaelClarke (Signature)
and Mathew Hayden (Signature).

[7] It is apparent that while there was acceptance that the exchange between theappellant and Mr Symonds was initiated by Mr Symonds and was heated in that theword "fuck" was used no other details of the language used was given. However itwas accepted by all parties that it was and intended to be offensive to Mr Symonds.

[8] I was not prepared to only accept the agreed statement of facts. I required thewitnesses to be called.

[9] As a consequence Mr Jordan called those witness who signed the agreedstatement other than Mr Gilchrist who was unwell, to give evidence of theirrecollection of what occurred. It was accepted by all counsel that Mr Gilchrist’sevidence was to the effect that he did not hear anything and there was no prejudice toMr Singh by his absence.

[10] Before the witnesses gave their evidence they all viewed the video. This wasan analysis of all available camera angles and included audio from the stumpmicrophone.

[11] It was also accepted by counsel that neither umpire heard anything ofrelevance and their evidence was not required. Finally it was agreed that thereshould be no evidence from Mr Anil Kumble who although present in front ofProcter was not a witness to the events. Rather he was there in his capacity ofcaptain of the Indian team.

[12] It is apparent that the heated exchange arose because Mr Symonds tookexception to the appellant patting the bowler Mr Lee on the backside. I havereviewed the television evidence of what occurred. It is clear that Mr Lee bowled anexcellent yorker to Mr Singh who was fortunate to play the ball to fine leg. As hepassed Mr Lee while completing a single Mr Singh patted Mr Lee on the backside.Anyone observing this incident would take it to be a clear acknowledgement of "wellbowled".

[13] However Mr Symonds took objection to this and at the end of the 116th over heapproached Mr Singh telling him he had no friends among the Australians in fouland abusive language. Mr Singh became angry and responded in kind. It wasaccepted by Mr Symonds that some of Mr Singh’s response was in his nativelanguage

"MR MANOHAR: I put it to you that apart from the other Indian abuses he said toyou the words "teri maki"?

MY SYMONDS: Possibly, I don’t recall, I don’t speak that language.

MR MANOHAR: Thank you.

HIS HONOUR: But you accept that as a possibility, My Symonds?

MR SYMONDS: As a possibility I accept that, yes."

Mr Symonds also gave evidence that in the course of this angry exchange that heinitiated and provoked Mr Singh called him "you big monkey".

[14] Mr Symonds appears to be saying that he finds it unacceptable that anopponent makes a gesture that recognises the skill of one of his own team mates. Inthe transcript he stated:

"MR MANOHAR: You had any objection to that patting on the back?

MR SYMONDS: Did I have an objection to it – my objection was that a test match isno place to be friendly with an opposition player, is my objection."

If that is his view I hope it is not one shared by all international cricketers. It wouldbe a sad day for cricket if it is.

[15] Mr Hayden gave evidence that he was changing his position at slip at the endof the over. While not hearing any other words in the exchange or being able torecall them he also stated he heard Mr Singh call Mr Symonds a big monkey. Hewas adamant those were the words he heard although he could recall no others.

[16] At about this time Mr Michael Clarke was slowly crossing the pitch fromcover to cover. His evidence was that he heard Mr Singh call Mr Clarke a bigmonkey. He was cross examined by Mr Manohar, counsel for the appellant, as towhat he stated in the hearing before Mr Procter. There it was recorded that he statedhe heard "something like big monkey". However, his evidence to me was not thatthis was the use of something similar to "big monkey". Rather he maintained thatwhat he told Mr Procter was that he heard things being said that he did not hear orcomprehend which he referred to as "something something something" but then heheard the words "big monkey".

[17] Mr Symonds accepted that Mr Tendulkar of all the participants was closest toMr Singh. A viewing of the video shows that people were moving around butcertainly Mr Tendulkar appears to have been closest to Mr Singh in the course of theheated exchange we are concerned with. Contrary to reports that Mr Tendulkarheard nothing he told me he heard a heated exchange and wished to calm Mr Singhdown. His evidence was that there was swearing between the two. It was initiatedby Mr Symonds. That he did not hear the word "monkey" or "big monkey" but hedid say he heard Mr Singh use a term in his native tongue "teri maki" which appearsto be pronounced with a "n". He said this is a term that sounds like "monkey" andcould be misinterpreted for it.

[18] 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 bowlingthere followed the exchange above initiated by Mr Symonds and that he respondedangrily. He accepted he used offensive words including the "teri maki" in his nativetongue but he did not use the word "monkey".

[19] When reviewing the evidence it is apparent that following incidents in Indiathere was a little of ill feeling between Mr Singh and Mr Symonds. Mr Symonds felthe had been called a "monkey" which was a racial insult by Mr Singh. Mr Singh forhis part said that he never called him such thing. Whatever was actually said it isapparent that they shook hands and there was an agreement. Mr Symondsmaintained this was an agreement by Mr Singh not to use this word again. Mr Singhsaid it was a two way agreement whereby neither of them would speak to each otheron the field in such a way. Mr Symonds was not cross examined by counsel for MrSingh as to the extent of this agreement and whether it was two sided matter. Butequally Mr Singh was not challenged as to his version that it was a two wayagreement. He said:

"MR JORDAN: Just one matter, your Honour. Mr Singh, so you felt provoked by MrSymonds using the work "fuck"?

MR SINGH: Yes.

MR JORDAN: And you felt provoked by Mr Symonds after shaking hands with youin India using that word on the foot – on the ---?

MR SINGH: Yes.

MR JORDAN: ---cricket field? And you were angry?"

MR SINGH: Yes, I was angry.

It makes sense to me and it would be more likely that it was a two way agreementthat they would not speak on the field and this was initially breached by MrSymonds’ provocative abuse.

[20] Furthermore the note kept of the four hour hearing in front of Mr Procter is amixture of précis and direct speech of parts of the proceedings, testimony andsubmissions that were noted down. The first page records appearances and the restof a four hour hearing occupies less than five and a half pages. Given the informalnature of the hearing and the circumstances pertaining to it this is not surprising andis not a criticism. However, it seems to me in future that particularly for moreserious offences under Level 3 and Level 4, it would be better if the referees wereable to record a full transcript of the hearing in front of them. But what it meant wasthat the record was inadequate for the purposes of this hearing which is why I heardevidence from all parties.

Discussion

[21] Under Code of Conduct clause L, sub-clause 2, the Code of Conduct Rules aregoverned by, and are to be construed in accordance with, the laws of England andWales. The circumstances of the present case have led to a full re-hearing with theevidence being viva-voce to ensure a fair hearing. That means that I have to reachmy own conclusions on the evidence independent of Mr Procter’s findings.

[22] Mr Singh was charged with a Level 3 offence. Where relevant the Code ofConduct reads:

Level 3
The Offences set out at 3.1 to 3.3 below are Level 3 Offences. The penaltyfor a Level 3 Offence shall be a ban for the Player or Team Officialconcerned of between 2 and 4 Test Matches or between 4 and 8 ODIMatches

3.3 Using language or gestures that offends, insults, humiliates,intimidates, threatens, disparages or vilifies another person on thebasis of that person’s race, religion, gender, colour, descent ornational or ethnic origin

[23] It can be seen that this requires the adjudicator, or the Code of ConductCommissioner appointed to hear an appeal, to be satisfied of two things. The first isthat the alleged words were used. The second is that the words "offend, insult,humiliate, intimidate, threaten, disparage or vilify another" on the basis of "race,religion, gender, colour, descent or national or ethnic origin".

[24] Before turning to my evidential findings I consider it appropriate to commenton two other matters.

[25] The appeal document filed on behalf of Mr Singh states that there is noevidence to support the allegations against Mr Singh. This is mainly on the basisthat it is contended the evidence of Messrs Symonds, Clarke and Hayden, inparticular, should have been rejected. In a sense, because I am conducting are-hearing this is irrelevant, but I think it is appropriate to comment.

[26] This misunderstands the process required of a fact finder, be it in a jury or aJudge in a Court of law, or someone involved in disciplinary hearings such as we areconcerned with here. Finders of fact daily face a situation where there is a conflictof evidence between witnesses on an opposing side of a dispute. In serious criminalmatters juries are routinely instructed by the presiding Judge that they can accepteverything that is said by a particular witness, or reject it. They are told they mayaccept some of the evidence, and not other parts. They are also told, in making thisassessment, that they can have regard as they think fit to the manner and demeanourof the witnesses as they gave that evidence.

[27] The mere fact of such disputes does not excuse the fact finder from reaching aconclusion. It is a requirement of the finder of fact to consider all of the evidenceand then determine which evidence, or which part of such evidence, he, she or theywill accept. It is often an invidious exercise, but one that, by necessity, must betaken. In this case it was the obligation of Mr Procter as the match referee, to makefindings of fact.