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Thursday, January 31, 2008

Commissioner decides Harbhajan's fate by applying "comfortable satisfaction" standard

I'm not surprised that, after the quasi-judicial hearing held in Federal Court no1 in Adelaide , the ICC appointed Appeals Commissioner, New Zealand Supreme Court Justice Hansen has overturned the three Test suspension on Harbhajan Singh imposed by match referee Mike Procter.
Harbhajan has not got off scot-free: he pleaded guilty to and was was fined 50% of his match fee on a lesser charge of abusive language.

Justice/ Commissioner Hansen gave his decision on Tuesday and then published his reasons (see link) yesterday. Between these two events he learned that Harbhajan had in fact previously been reported for various matters not once but three times. The ICC had apparently not been able to inform him of this before he delivered his findings orally.

The whole thing reeks of a deal worked out behind the scenes even though the Commissioner, and just about everyone else involved in an official capacity, seems to have gone out of their way to deny this. At the end of his written decision, Justice Hansen stated [Paragraph 70]:

I have read some of this morning’s media reports of the outcome of the hearing. I trust now that the full facts are known and my reasons are available there will be a greater degree of proportionality and rationality. I wish to make it quite plain that as a Code of Conduct Commissioner appointed by the ICC I am independent of that body. I have brought that independence to this hearing. 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”. While I was tendered an agreed statement of facts at the commencement of the hearing, I still insisted on counsel assisting me to call the players that could give relevant evidence and to hear that evidence viva-voce and to have them cross examined. The decision that I have reached is based on my findings on that evidence. 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. I also wish to add that while I was aware of the media furore surrounding this matter no-one has attempted to apply direct pressure to obtain an outcome. In any event as I said earlier it would be a breach of my judicial oath, and a dereliction of duty as an independent Code of Conduct Commissioner, to succumb in any way to such pressure. I repeat I have independently reached my decision based on the evidence as I have found it to be and in accordance with the applicable standard of proof and interpretation of the Code of Conduct Regulations.

The Agreed Statement of Facts to which he refers is included at Paragraph 6. It makes interesting reading (apart from the typos):

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 [sic] 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 [sic] 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 [sic] 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 [sic] Hayden (Signature).

In arriving at his decision the Commissioner considered what standard of proof was appropriate. He chose to follow [see Para 30] Clause 4.1 of the ICC Anti-Doping Code:

The standard of proof shall be whether ICC has established an Anti Doping Code violation to the comfortable satisfaction of the hearing body bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases shall be greater than a mere balance of probabilities but less than a standard of proof of beyond a reasonable doubt.

At Paragraph 40 the Commissioner explained what he thought the "comfortable satisfaction" standard is:

I take it to be that the finder of fact does not need to be sure or satisfied beyond reasonable doubt but it is not sufficient if his mind is swayed only to the extent of the balance of probability, in other words, to the comfortable satisfaction of the person hearing the matter. I am also satisfied that the more serious the allegation made against a player or official, the more improbable the event so the evidence must be stronger to establish it. In this case, with a Level 3.3 offence alleging a racist comment, the allegation is clearly of a very serious nature. In such a case it requires strong evidence to establish it. For the reasons that follow it is tantamount to the criminal standard.

I could go on (and on) about this but won't; though I recommend that, if you're in the slightest degree interested in the matter, you read the entire 22 page decision.

Needless to say, elsewhere there's been plenty of comment: even the Governor-General has stated his views.

For a survey of the controversy since it began 27 days ago see .

For a sample of Indian media perspectives see
Hindustan Times and The Hindu : "Indian cricket may pat itself on the back for winning this final encounter following a four-Test series in which it played splendid cricket to challenge the hegemony of cricket’s superpower, Australia. What was indefensible, from the standpoint of the spirit of cricket, was the BCCI’s unsporting tactics to pre-empt due process and the threats or implied threats to call off the tour. By behaving very much like cricket’s bullying financial superpower, it has lost goodwill round the cricket world. "

For Australian comment see The Age, which has a link to video and stump microphone audio of the incident as well as a conciliatory piece by Harsha Bogle, and various items in The Australian.

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