People on both sides on this matter constantly miss the crucial part of the judgement:
[53] In my view it is therefore necessary to determine under 3.3 whether the
“ordinary person” would be “offended, insulted, humiliated, intimidated, threatened,
disparaged or vilified” on the basis of “their race, religion, gender, colour, descent,
or national or ethnic origin” by the words that were said.
[54] Furthermore, the behaviour must be looked at in context. Such events are
always contextual and the language or gestures referred to in 3.3 cannot be looked at
in isolation and need to be considered in the context of the overall behaviour.
[55] I have set out above the agreed statement of facts. There it was accepted by
Mr Singh that he intended to be offensive towards Mr Symonds and Messrs Symonds, Hayden and Clarke were of the view that in the circumstances that
language was offensive.
[56] 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.
[57] Given that is the view of the complainant it is hard to see how the requisite
elements of 3.3 could be satisfied. However, given it is an objective interpretation
that is not the end of the matter. I must consider if the “ordinary person” would have
been offended in a 3.3 sense. 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 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.
[58] So on that alternative basis I would also have been satisfied that the
requirements of 3.3 were not met. So as to summarise that ground. Firstly, Mr
Symonds through counsel accepts he was not offended in a 3.3 sense. Secondly on
an objective basis I do not consider the response transgressed against 3.3.