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.

Olive branch or plea bargain of sorts offered

Tonight comes news that India has withdrawn its charge against Brad Hogg.

Earlier today, in the column appearing under his name in The Australian with the headline "Team pledge to learn from past" Ricky Ponting fudged a bit but seemed, if not contrite, then a little more open than he'd been before to a broader view of the situation:

I have been surprised by the reaction of some in the broader community who believe we did not play that amazing Sydney Test in the spirit of the game.

We take the spirit of cricket very seriously and are determined to ensure we are not only remembered as a good team but one that is respected throughout the cricket world for the way we play.

That is why I led a meeting this afternoon of our team and other cricket officials, where we revisited our spirit of cricket pledge.

We looked back at last week's game and discussed little areas where we believed we could improve things.

No-one is beyond criticism or bigger than the game.

Life's all about learning little things day by day, and it's no different playing in a successful cricket team.

You always find little ways of improving yourself.

I know, and the players know, that we are not going to keep everyone happy 100 per cent of the time.

I am always happy to cop that sort of criticism and go away and find ways and means of how we can make things better, as we all are. We are certainly not brushing off the criticism because if there is a public reaction like there has been; there are some areas we need to improve.

I know when I was given out in the first innings in Sydney I should have left straight away instead of hanging around for a few seconds, and I know I should not have lobbed my bat into the dressing room.

Michael Clarke also knows that he should have gone straight away too, after cutting the ball to first slip. He knows he did the wrong thing, but at the time he was just shocked at how he had got out first ball.

I believe there are no glaring issues we need to address, but when they are all added together in the heat of such a tense and dramatic final day, they caused a reaction, so we need to tighten up on how we play.

We are very keen to ensure we get the balance of how we play the game right so we can focus clearly on another very big match coming up, this time the third Test in Perth, with the possibility of a record 17th consecutive win if we're good enough in this game.

Elsewhere, while Sunil Gavaskar , chair of the ICC Cricket committee, has criticised Second Test match referee Mike Procter for "taking the white man's word against that of the brown man", Peter Roebuck hopes that "the peace pipes have been smoked in both camps" (in my western movie watching experience peace pipes were smoked in one camp, not two).

The Australian Open tennis started today, so that will deflect some of the attention away from cricket, at least in this country, for the next day or so before it's game on, or battle resumed, or whatever.

Revised rules?

New rules proposed by an Indian blogger with, I think, tongue in cheek, though I'm not so sure about some of them, eg

(5) All AUSTRALIAN players are eligible to keep commenting about all players on the field and the OPPONENT TEAM should never comment as they will be spoiling the spirit of the AUSTRALIAN team. Any comments made in any other language are to be considered as RACIALISM only.

(6) MATCH REFREE decisions will be taken purely on the AUSTRALIAN TEAM advices only. Player views from the other teams decisions will not be considered for hearing. MATCH REFREES are to be given huge bonus if this rule is implemented.

(7) NO VISITING TEAM should plan to win in AUSTRALIA. This is to ensure that the sportive spirit of CRICKET is maintained.

Update later 9 January

In today's Age there's a Spooner cartoon (p13, though not online as far as I can tell) showing an Australian batsman grovelling before a weeping Indian player, with this text:

Kindness before cricket (An official amendment to the spirit of the game)

Section (axi): Whenever a team perceives that losing a match has caused or may be likely to cause, incredibly awful rage or horrible disappointment, then the match referee must instruct the insensitive winning team to forthwith surrender its advantage so as to accord the persecuted losing team a full victory and, where appropriate, an abject apology.

Bucknor defelicitated, and tour expected to continue

In March 2005 umpire Steve Bucknor was, as The Hindu reported at the time,

felicitated by the BCCI for becoming the world's first umpire to stand in hundred Tests on Wednesday.

Cricket Association of Bengal President and former BCCI Chief Jagmohan Dalmiya handed over a plaque to Bucknor shortly before the start of the opening day's play of the second cricket Test match at the Eden Gardens.

Dalmiya was accompanied by BCCI Joint Secretary Goutam Dasgupta during the brief function. Around 30,000 spectators broke into spontaneous applause as Bucknor raised the silver plaque in acknowledgment.

Today probably millions of Indian cricket followers will be applauding the news that the same umpire Bucknor has been defelicitated, ie removed from the umpiring panel for the Perth Test. His replacement is Billy Bowden, he of the flamboyant mannerisms , who a couple of years ago was rated the second worst umpire in the world". In Billy's defence he has claimed assistance from a higher power in his decision making ("God- is my third umpire in a way"). We must hope that God has access to good slo-mo replays from many angles, Hawkeye, Snicko et al, otherwise further controversy will almost certainly ensue.

As a consequence of Mr Bucknor's defelicitation it is now likely that the tour will go ahead.

Other news


Before tonight's news broke, media scrutiny of the situation had intensified following the statement issued by the Board of Control for Cricket in India

The Board of Control for Cricket in India has viewed the happenings during the second cricket Test between India and Australia in Sydney with great concern as some of these can have a far-reaching impact on international cricket.

Some of incidents are highly regrettable considering the warm and friendly relations between the Indian and Australian cricket boards.

The incident involving Indian off-spinner Harbhajan Singh and Australian all-rounder Andrew Symonds and the subsequent hearing by the ICC match referee and his conclusions are, to say the least, distressing.

The Indian board does not accept the findings of the match referee and has decided to challenge the unfair decision to suspend Harbhajan Singh as it deems it patently unfair.

The board will appeal to the International Cricket Council to review the decision of the match referee and suspend its operation till the appeal is disposed of.

The Indian board realises the game of cricket is paramount but so too is the honour of the Indian team and for that matter every Indian.

To vindicate its position, the board will fight the blatantly false and unfair slur on an Indian player.

The board also questions the very conduct of the hearing as the match referee, before reaching his decision disregarded the essential point of any inquiry, that it should be based on facts, rational, detached and objective.

The board, in particular, is unhappy with the charge of racial slur against India's off-spinner Harbhajan Singh.

Here it may be mentioned that it is an avowed policy of the Indian government to fight racial discrimination at every level and the India board has been at the forefront to eradicate it from the game of cricket.

For the Indian board anti-racial stance is an article of faith as it is for the entire nation which fought the apartheid policies.

The board has always fought the racist sledging of players and spectators and it will continue to do so.

Here in Australia a large proportion, perhaps a majority, of the public and, in the media, Peter Roebuck in The Age and, to a lesser degree, Mike Coward in The Australian expressed similar sentiments. Roebuck didn't mince his words (though IMO went too far) :

Ricky Ponting must be sacked as captain of the Australian cricket team.

If Cricket Australia cares a fig for the tattered reputation of our national team in our national sport, it will not for a moment longer tolerate the sort of arrogant and abrasive conduct seen from the captain and his senior players in the past few days. It was the ugliest performance by an Australian side for 20 years. The only surprising part of it is that the Indians have not already packed and gone home.

That the senior players in the Australian team are oblivious to the fury they raised among many followers of the game in this country and beyond its shores merely confirms their own narrow and self-obsessed viewpoint.

Coward was more restrained, but still made his point forcefully:

Indian cricket captain Anil Kumble's denunciation of the way Australia plays cricket will be widely supported throughout the international cricket community.

The Australian cricket team has been accused of boorish behaviour.

By so publicly questioning the manner in which the Australian cricket team plays he is expressing a view held by many people in this country and many more beyond the Indian diaspora...For someone renowned for his thoughtful and measured approach to matters on and off the field, his statement was a damning condemnation of the operational methods of the most powerful and successful cricket team in the world

......

With the full support of the team management, his employer, the Board of Control for Cricket in India and, unquestionably, a partisan and ropeable Indian media, Kumble has loudly questioned the ethics of the Australian team.

As a counterweight to these views each paper published alternative (or pro- Australian) views, viz "If petulance has no place at junior level, it has no place at all in Tests" by Greg Baum in The Age, and Malcolm Conn in The Australian "Calls for Ponting's head ludicrous" .

Ponting himself in his column in The Australian says " I was doing the right thing by the game".
The views of Indian newspapers are outlined in The Australian, The Age and the London Daily Telegraph (whose story includes an interesting photo of the front pages of several Indian English language newspapers).

The Telegraph also has a background piece about sledging by Leo McKinstrywhich includes a couple of good (perhaps apocryphal) anecdotes about Australian sledging in the distant past (ie in the early days of my interest in cricket).

To finish on a lighter note, The Hindu reports that the Indian lawyers team have just won the Lawyers' cricket world cup. Perhaps their legal skills will be called upon to help the BCCI with its appeal against the Harbhajan Singh ban.

Threats and recriminations abound in wake of Test

Harbhajan Singh's three match ban for making a racist comment has added to the bad blood resulting from the circumstances in which Australia won the Second Test, and the manner in which they celebrated their victory.

Yesterday I said that Anil Kumble and the Indian players had accepted their defeat gracefully. This was true only of the immediate aftermath of the game. The Indian media, as I mentioned yesterday, have led (or reflected) public opinion in their country to excoriate the umpires for incompetence (or worse), the Australians for cheating (or worse) and the ICC match referee Mike Procter for various things including buckling under the demands of the Australians.

In Australia there is, as exemplified by online polls and suchlike, a broader range of opinion with many, to their credit, prepared to criticise aspects of the conduct of Australian players.

At the moment there is some doubt as to whether the tour will continue. My guess is that it will: there is a sufficiently long break in the program to allow for some repair work, if only papering over a few cracks, to be done before the Perth Test begins on 16 January. How, and by whom this might be done I'm not sure, but reckon that the ICC needs to get involved pronto with the peak governing bodies of Australia and India.

Things are unfolding (not I hope unravelling) rapidly so for now I'll just link to some comments:

#Peter Roebuck in The Age today "Rotten from first day to the last", which begins :

India has been dudded. No-one with the slightest enthusiasm for cricket will take the least satisfaction from the victory secured by the local team in an SCG Test match that entertained spectators at the ground, provided some excellent batting but left a sour taste in the mouth. It was a match that will have been relished only by rabid nationalists and others for whom victory and vengeance are the sole reasons for playing sport. Truth to tell the last day was as bad as the first. It was a rotten contest that singularly failed to elevate the spirit.

# Peter Lalor in The Australian's "A win, a hangover and a sense of dread" (with 212 comments as I post).

# ABC TV's 7.30 Report: including comments from

-Gideon Haigh: "It's a shame that Australians, in the way that they play the game, aren't actually doing themselves many favours at the moment... someone calling someone else on the cricketing field a monkey that's like someone saying squashing an ant is murder. The confrontation on the field was extremely unedifying and I'm sick and tired of these kind of contrived aggressive, overbearing tactics from both sides.

- Malcolm Conn: the Australians are" not a bunch of cheats and anyone who calls them a bunch of cheats I think should really have a good think about what's considered cheating and what's not"

- Harsha Bogle, "The moment you say, "Take my word for it", you're committing yourself to being honest in every sphere. Then you cannot say that I will appeal when a batsman is not out, but you take my word when I've taken a catch. See, you cannot be selectively moral."

The ABC's Jim Maxwell also appeared:

HEATHER EWART: Finally, who's right and who's wrong here in your view?

JIM MAXWELL: Well, there's always the grey area. The umpires are certainly in the wrong and they're the ones in the middle that may have caused a lot of the trouble. The players do need to understand that there are certain limits and they need to play within those. Almost everything they do on the field is going to be scrutinised. Unfortunately, it's the nature of the game with television getting in so close to it these days. But I just think they need to go a bit more quietly about what they're doing. Because the fact is Australia plays some of the best cricket of any team of all time. Just get on with playing the game and forget all the other nonsense, stop trying to bait people. If something goes wrong, deal it with it on the field, don't let it be carried on in another place because there'll be no end to it, as I say. The lawyers will love this.

# R K Raghavan in The Hindu "Investigating cricket misconduct":

We initially believed that the controversy could hardly be resolved because it was a question of one man’s word against the other.

If Harbhajan’s conviction was based on the greater credibility of Symonds’s version of the incident, it is grossly unfair to him and a clear violation of the principles of natural justice, even conceding that Harbhajan was not facing a judicial enquiry.

#Cricinfo's The Surfer blog links to many other media comments from around the world.