Appeals Commissioner The Hon. Justice John Hansen insisted that "It was not the ICC that reduced the charge against Mr Singh from a level 3.3 offence to a 2.8. That was my decision and my decision alone. I made that decision on the basis of my factual findings and my legal interpretation of the Code of Conduct. An interpretation I may add that counsel were by in large in agreement with. I also wish to disabuse the media of any notion that there was some "sort of deal".... It is incorrect to suggest that there was some sort of an agreement reached between Australian and Indian cricket authorities that I simply rubber stamped." He also of course pointed out that had he been made aware of Harbhajan Singh's earlier transgressions, the penalty imposed may have been different: 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."
BEFORE THE INTERNATIONAL CRICKET COUNCIL APPOINTED APPEALS COMMISSIONER
IN THE MATTER OF an Appointment of an Appeals Commissioner to determine an appeal against the findings of ICC match referee Michael Procter Esq ("The Adjudicator"), dated 7 January 2008
IN THE MATTER OF an adjudicated breach of the ICC Code of Conduct during the second test match between India and Australia on 4 January 2008 at the Sydney Cricket Ground, Sydney, Australia
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 BCCI Mr Brian Ward for Cricket Australia Hearing Date: 29 January 2008 Decision: 29 January 2008
Full written reasons 30 January 2008
 Mr Singh appeals against the decision of the match referee, Mr Michael Procter, 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.
 The second cricket test between India and Australia commenced at the Sydney Cricket Ground on 2 January 2008. On 4 January 2008, at the conclusion of the 116th over, one of the Indian batsmen, Mr Harbhajan Singh, patted the Australian bowler, Mr Brett Lee on his backside. Another Australian player, Mr Andrew Symonds, considered it appropriate to intervene on behalf of his team mate. There then followed a heated exchange between Mr Singh and Mr Symonds. Mr Symonds alleged that Mr Singh called him either a "monkey" or a "big monkey". This was reported to the Australian Captain, who considered it his duty to refer it to the umpires. The umpires considered it their duty to report it as a breach of paragraph 3.3 of the Code of Conduct. The matter was referred to the match referee who carried out a hearing which was, by agreement, delayed until the end of the match. Mr Procter after hearing from various witnesses was satisfied beyond reasonable doubt "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 of the words insulted or offended Mr Symonds on "the basis of his race, colour or ethnic origin".
 Pursuant to Clause 11(b) of the Code of Conduct the Indian team manager, Mr Chethan Chauhan, on behalf of Mr Singh, lodged a written Notice of Appeal on January 7, 2008. In accordance with Clause 11(c) the ICC’s legal counsel, Ms Urvasi Naidoo, appointed me to hear Mr Singh’s appeal. By this time two of the witnesses, the umpires Messrs Bucknor and Benson, had left Australia. Because of the logistical difficulties associated with assembling all witnesses, and because of the intervention of the third and fourth tests, both the BCCI and Cricket Australia requested that I delay the hearing date until after the fourth test. In any event I was satisfied the matter could not be disposed of within the seven days of appointment. This was not simply because of the difficulties associated with assembling the necessary witnesses.
 In order to ensure a fair hearing for Mr Singh, I determined in this case that a hearing with the participants present should be organised. This necessitated the appointment of legal counsel, the finding of a suitable venue for such a hearing and obtaining suitable secretarial assistance. Self-evidently, such matters take some time. For those reasons I was content to accede to the request to adjourn the matter to 29 January.
 Clause 11(f) of the Code of Conduct reads:
The process for conducting the hearing shall be left to the discretion of the Appeals Commissioner. Oral representations (either in person or by telephone conference as determined in the discretion of the Appeals Commissioner) should be permitted unless there are good reasons for relying on written submissions only. Where it is available, he shall view video tape of the incident which is the subject matter of the appeal.
 In this case I conducted a telephone conference with counsel representing all interested parties. I issued a Minute setting down the procedure to be adopted at the hearing. This involved conducting a hearing De Novo and evidence being adduced from those witnesses who gave evidence before Mr Procter. However, to some extent this was overtaken by events at the commencement of the hearing. The appellant, Mr Singh and the witnesses Messrs Ponting, Symonds, Clarke, Gilchrist, Hayden and Tedulkar had signed an agreed statement of facts that was tendered to the court. I reproduce the statement of facts in the exact form in it which it was tendered.
Statement of Agreed Facts
During the 116th over on Day 3 of the Sydney Test, Harbhajan Singh made friendly contact with Brett Lee. At the end of the over while the umpires were changing ends and the fields was crossing over to their new positions, Andrew Symonds approached Harbhajan Singh and told him that he had no friends amongst the Australians (he admits he used the word ‘fuck’ or a derivation thereof). Singh used similar language to Symonds and neither took offence at that stage. However the exchange caused Singh to become angry and he motioned to Symonds to come towards him. Singh then said something to Symonds. There is a dispute as to what was said. However all of the players who gave evidence to the hearing before Match Referee Procter of what was said between Harbhajan Singh and Andrew Symonds namely, Harbhajan Singh, Andrew Symonds, Mathew Hayden and Michael Clarke, are all clearly of the view that in the circumstances, Harbhajan Singh used language that was (and intended by Singh to be), offensive to Andrew Symonds. Symonds took immediate offence at the language and behaviour of Singh. After the exchange between Singh and Symonds, Michael Clare spoke to umpire Mark Benson and complained about Singh’s behaviour, Clarke then told his captain Ricky Ponting what he had heard. Ponting went to Umpire Benson and told him that he had been informed by Clarke of the use by Harbhajan Singh of offensive language towards Andrew Symonds. On his way back to the slips position Ricky Ponting spoke with Harbhajan Singh, Sachin Tendulkar then approached Ponting and Singh and 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 towards Symonds at the conclusion of the preceding over. At the end of Over 117 Ponting went of the field and told the Australian Team Manager (Steve Bernard) about the incident.
Harbhajan Singh (Signature),
Ricky Ponting (Signature),
Andrew Symonds (Signature),
Adam Gilchrist (Signature),
Sachin Tendulkar (Signature),
Michael Clarke (Signature)
and Mathew Hayden (Signature).
 It is apparent that while there was acceptance that the exchange between the appellant and Mr Symonds was initiated by Mr Symonds and was heated in that the word "fuck" was used no other details of the language used was given. However it was accepted by all parties that it was and intended to be offensive to Mr Symonds.
 I was not prepared to only accept the agreed statement of facts. I required the witnesses to be called.
 As a consequence Mr Jordan called those witness who signed the agreed statement other than Mr Gilchrist who was unwell, to give evidence of their recollection of what occurred. It was accepted by all counsel that Mr Gilchrist’s evidence was to the effect that he did not hear anything and there was no prejudice to Mr Singh by his absence.
 Before the witnesses gave their evidence they all viewed the video. This was an analysis of all available camera angles and included audio from the stump microphone.
 It was also accepted by counsel that neither umpire heard anything of relevance and their evidence was not required. Finally it was agreed that there should be no evidence from Mr Anil Kumble who although present in front of Procter was not a witness to the events. Rather he was there in his capacity of captain of the Indian team.
 It is apparent that the heated exchange arose because Mr Symonds took exception to the appellant patting the bowler Mr Lee on the backside. I have reviewed the television evidence of what occurred. It is clear that Mr Lee bowled an excellent yorker to Mr Singh who was fortunate to play the ball to fine leg. As he passed 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 "well bowled".
 However Mr Symonds took objection to this and at the end of the 116th over he approached Mr Singh telling him he had no friends among the Australians in foul and abusive language. Mr Singh became angry and responded in kind. It was accepted by Mr Symonds that some of Mr Singh’s response was in his native language
"MR MANOHAR: I put it to you that apart from the other Indian abuses he said to you 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 he initiated and provoked Mr Singh called him "you big monkey".
 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. In the 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 is no 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 would be a sad day for cricket if it is.
 Mr Hayden gave evidence that he was changing his position at slip at the end of the over. While not hearing any other words in the exchange or being able to recall them he also stated he heard Mr Singh call Mr Symonds a big monkey. He was adamant those were the words he heard although he could recall no others.
 At about this time Mr Michael Clarke was slowly crossing the pitch from cover to cover. His evidence was that he heard Mr Singh call Mr Clarke a big monkey. He was cross examined by Mr Manohar, counsel for the appellant, as to what he stated in the hearing before Mr Procter. There it was recorded that he stated he heard "something like big monkey". However, his evidence to me was not that this was the use of something similar to "big monkey". Rather he maintained that what he told Mr Procter was that he heard things being said that he did not hear or comprehend which he referred to as "something something something" but then he heard the words "big monkey".
 Mr Symonds accepted that Mr Tendulkar of all the participants was closest to Mr Singh. A viewing of the video shows that people were moving around but certainly Mr Tendulkar appears to have been closest to Mr Singh in the course of the heated exchange we are concerned with. 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.
 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".
 When reviewing the evidence it is apparent that following incidents in India there was a little of ill feeling between Mr Singh and Mr Symonds. Mr Symonds felt he had been called a "monkey" which was a racial insult by Mr Singh. Mr Singh for his part said that he never called him such thing. Whatever was actually said it is apparent that they shook hands and there was an agreement. Mr Symonds maintained this was an agreement by Mr Singh not to use this word again. Mr Singh said it was a two way agreement whereby neither of them would speak to each other on the field in such a way. Mr Symonds was not cross examined by counsel for Mr Singh as to the extent of this agreement and whether it was two sided matter. But equally Mr Singh was not challenged as to his version that it was a two way agreement. He said:
"MR JORDAN: Just one matter, your Honour. Mr Singh, so you felt provoked by Mr Symonds using the work "fuck"?
MR SINGH: Yes.
MR JORDAN: And you felt provoked by Mr Symonds after shaking hands with you in 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 agreement that they would not speak on the field and this was initially breached by Mr Symonds’ provocative abuse.
 Furthermore the note kept of the four hour hearing in front of Mr Procter is a mixture of précis and direct speech of parts of the proceedings, testimony and submissions that were noted down. The first page records appearances and the rest of a four hour hearing occupies less than five and a half pages. Given the informal nature of the hearing and the circumstances pertaining to it this is not surprising and is not a criticism. However, it seems to me in future that particularly for more serious offences under Level 3 and Level 4, it would be better if the referees were able to record a full transcript of the hearing in front of them. But what it meant was that the record was inadequate for the purposes of this hearing which is why I heard evidence from all parties.
 Under Code of Conduct clause L, sub-clause 2, the Code of Conduct Rules are governed by, and are to be construed in accordance with, the laws of England and Wales. The circumstances of the present case have led to a full re-hearing with the evidence being viva-voce to ensure a fair hearing. That means that I have to reach my own conclusions on the evidence independent of Mr Procter’s findings.
 Mr Singh was charged with a Level 3 offence. Where relevant the Code of Conduct reads:
The Offences set out at 3.1 to 3.3 below are Level 3 Offences. The penalty for a Level 3 Offence shall be a ban for the Player or Team Official concerned of between 2 and 4 Test Matches or between 4 and 8 ODI Matches
3.3 Using language or gestures that offends, insults, humiliates, intimidates, threatens, disparages or vilifies another person on the basis of that person’s race, religion, gender, colour, descent or national or ethnic origin
 It can be seen that this requires the adjudicator, or the Code of Conduct Commissioner appointed to hear an appeal, to be satisfied of two things. The first is that 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".
 Before turning to my evidential findings I consider it appropriate to comment on two other matters.
 The appeal document filed on behalf of Mr Singh states that there is no evidence to support the allegations against Mr Singh. This is mainly on the basis that it is contended the evidence of Messrs Symonds, Clarke and Hayden, in particular, should have been rejected. In a sense, because I am conducting a re-hearing this is irrelevant, but I think it is appropriate to comment.
 This misunderstands the process required of a fact finder, be it in a jury or a Judge in a Court of law, or someone involved in disciplinary hearings such as we are concerned with here. Finders of fact daily face a situation where there is a conflict of evidence between witnesses on an opposing side of a dispute. In serious criminal matters juries are routinely instructed by the presiding Judge that they can accept everything that is said by a particular witness, or reject it. They are told they may accept some of the evidence, and not other parts. They are also told, in making this assessment, that they can have regard as they think fit to the manner and demeanour of the witnesses as they gave that evidence.
 The mere fact of such disputes does not excuse the fact finder from reaching a conclusion. It is a requirement of the finder of fact to consider all of the evidence and then determine which evidence, or which part of such evidence, he, she or they will accept. It is often an invidious exercise, but one that, by necessity, must be taken. In this case it was the obligation of Mr Procter as the match referee, to make findings of fact.
For in-depth, objective and more importantly balanced journalism, Click here to subscribe to Outlook Magazine