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.

No unexpected turns (or turn) as match peters out: Fourth Test Day 5

India 526 and 7/269 dec (V Sehwag 151) drew with Australia 563.

As expected, if not as hoped, the fourth Test fizzled out in a draw today, after Virender Sehwag, having been dropped by Michael Clarke yesterday evening, played an innings of 151 which took India to safety and allowed them to declare at 7/269 late in the day. At this point both captains agreed that the match should end. .

Sehwag's innings followed an extraordinary course: his first 50 took 78b, the second 45b and the third, just when he seemed about to go into orbit, a tortoise like 105b. It goes without saying that without his contribution (the next highest scorers were Extras 26 and M S Dhoni 20) his team would have been in dire straits.

The Australian bowling was patchy: Brett Lee once again was very good (and showed great stamina), Mitchell Johnson had his moments, but the others varied from bland (Stuart Clark: match figures 0/129) to expensive (Brad Hogg: match figures 2/172). I thought that Michael Clarke deserved more than one over, especially if, as looks increasingly likely in the absence of a quality front line spinner, he and Andrew Symonds are going to have do more bowling in future.

So Australia retain the Border - Gavaskar Trophy 2 - 1, yet the results of the last two Tests (some India supporters might claim the last three) show that the gap between the teams has narrowed, perhaps even closed. I'll post more thoughts about this soon.

Scorecard.

Cricinfo Bulletin

PS A fresh hearing of the Harbhajan Singh matter will begin in Adelaide tomorrow.

Australia draw ahead but draw ahead after gritty day at the workplace: Fourth Test Day 4

India 526 and 1/45 lead Australia 563 ( R Ponting 140, M Clarke 118, M Hayden 103, I Pathan 3/112, I Sharma 3/115) by 8 runs with 9 wickets in hand.

After a couple of spectator intrusions onto the arena during the afternoon, the ground PA announcer asked everyone to respect the players' workplace. This is the first time I can recall hearing that term used during a game, though it was an apt description of the Adelaide Oval for much of the day's play, during which Australia moved from 3/322, losing only 6 wickets in overtaking India's first innings score, then to 563 all out.

241 from 70 overs was hardly scintillating cricket yet this included two workmanplace like centuries from Ricky Ponting and Michael Clarke. The is not intended to be too critical, merely to suggest that both Ponting and Clarke have batted better and more fluently. The captain had back trouble and needed a runner for the latter part of his innings, yet it was clear from his onfield workplace demeanour that he had some points to prove, not least that he had mastered Harbhajan Singh. His hundredth run came up, by his design I'm sure, with a single off Bhajji's bowling. He then continued to 140 from 266 b, surely one of the slowest innings he's played in any form of cricket.

Clarke looked more fluent, yet he had his quiet passages and the scoring rate of his 118/242b was a tad slower than his captain's.

Everyone present looked forward to Adam Gilchrist's innings. As you'd expect he was given a standing ovation when he appeared at 6/490 He hit one 4, a straight drive which had Umpire Bowden ducking for cover, and seemed set to produce more when at 506 he was caught by Sehwag at cover off Irfan Pathan, for 14/18b. made in 19 minutes. He departed to another standing ovation.

At 6/506 Australia were close to overhauling India's first innings. They did so wiithout further loss: just. The 7th wicket fell at 527 and the rest didn't last long.

Of the the Indian bowlers though Ishant Sharma (40-6-115-3) was consistently good until he lost his rhythm in the later stages of the innings and Verinder Sehwag ((19-2-51-2) extracted more zip from the pitch than his fellow, and supposedly more proficient, offspinner Harhajan.

Irfan Pathan also had his moments during the 36 overs he bowled (for 3/112) but he still opened the batting in the second innings. It was hardly surprising that he didn't stay long: lbw Johnson 0. Sehwag and Rahul Dravid played out the 17 overs to stumps, watching the quick bowlers carefully. Sehwag was given a life by Michael Clarke in the slips off Brett Lee but took 20 from the three overs bowled by Andrew Symonds.

With one day's play, ie 90 overs, remaining the game looks set for a draw. There is little in the wicket or the course of the match so far to suggest that it will end otherwise, though if the Australian attack could, with support from the fielders, work through the formidable Indian batting line up, an Australian win may not be out of the question. It's hard to see how India can win from here: they would need to pile on the runs, declare and bowl Australia out. Unlikely in 90 (or considerably more) overs.

Scorecard.

Cricinfo Bulletin

Adam Gilchrist announces retirement

Adam Gilchrist, IMO one of the greatest ever Australian cricketers, today announced his retirement from international and domestic first class and limited overs cricket. The current Test will be his last and he will step down from 50 over cricket at the end of the forthcoming tri-series.

Whatever his reasons I think it's a pity that he feels the need to retire now, when he is still such a capable player, even if he has recently fallen a little short of the extremely high standards of wicket keeping and batting which he has set.

I shall have more to say later but in the meantime will enjoy the few remaining times I'll be able to watch him, either in person (as in the current Test) or on TV.

A hard day's grind: Fourth Test Day 3

Australia 3/322 (M Hayden 103, R Ponting 79 no, P Jaques 60, M Clarke 37 no) trail India 526 by 204 runs on the first innings.

Today is both Australia Day and India's Republic Day, so play in the test match was preceded by a lengthy ceremony which included the singing of both countries' national anthems.

Then the battle on the pitch recommenced. Australia grafted throughout the day, losing only three wickets to an Indian attack which was steady without, apart from a few spells, being menacing.

In the first session, during which 30 overs were bowled, in spite of the mid 30s heat and two drinks breaks, Matthew Hayden and Phil Jaques advanced the score from 62 to 158. Spinners kept one, and sometimes both, ends going. Harbhajan Singh began at the southern end, while Anil Kumble, Virender Sehwag and Sachin Tendulkar each had a turn (Kumble's being by far the longer) before lunch. R P Singh was still sidelined with hamstring problems so the quick bowling was left in the hands of Ishant Sharma and Irfan Pathan, each of whom occasionally got one past the edge of the bat but didn't cause either batter much trouble.

Immediately after lunch Kumble broke through, bowling Jaques for a solid 60/159b. Enter Ricky Ponting, who dug in for the rest of day. I can only recall two of his trademark pulls to the leg boundary, but his determination was obvious.

Hayden completed an excellent, if by his standards relatively subdued, hundred: his 30th in test cricket. Shortly after doing so he was bowled through the gate by an excellent Sharma ball which came in the middle of a 9 -2 - 10 -1 spell for 103/200b (10x4, 1x6).

The occasional ball kept low or, when bowled by a spinner, bounced, which may have put some doubts into the batsmen's minds and, coupled with the tight bowling, pegged the scoring rate back to pre-1990s levels. Even so, only one more wicket fell for the rest of the day. Mike Hussey looked ill at ease by his standards, but he seemed to be finding his feet when he was bowled by Irfan Pathan for a laboured 22/66b.

At this point Australia were 3/241. Michael Clarke joined Ponting and took a while to settle in, but by the close of play was looking more assured. The captain, despite his doggedness showed a greater willingness to play strokes in the final overs, when the new ball was at last taken after 107 overs. At stumps he was 79 no/150b and looks set to continue tomorrow, when spectators will hope for a more positive approach as the follow on is passed and the Indian bowling tires.

While there are some parallels with the Second Ashes Test played here in 2006 it is IMO too much to expect a similar result this time. Both sides in the current match have strong batting but bowling which appears to lack the penetration required to dismiss the opposition in two or three sessions. This means that the draw is looking as the likeliest result, but then I thought that about the Ashes Test until some time into the final day.

Scorecard.

Cricinfo Bulletin.

Lower order batting takes India to strong position: Fourth Test Day 2

Australia 0/62 trails India 526 (S Tendulkar 153, A Kumble 87, Harbhajan Singh 63, V Sehwag 63, VVS Laxman 51, M Johnson 4/126, B Lee 3/101 by 464 runs with 10 wickets in hand.

The photo on the left shows Australia, with field scattered to all points of the field, on the defensive against some obdurate Indian lower order batting which took the total to a healthy 526. The one on the right shows the Indian field crowding the Australian openers in the closing overs of another good, though not quite vintage, day of Test cricket.

Those who came to see Sachin Tendulkar add to his overnight 124 saw enough of him, as he added a further 31 runs in his typical style, to be able to tell their grandchildren that they'd seen the little master at his best. Even so, while these 31 runs helped take the total to 359, when he was struck by a blow on the knee from a Brett Lee delivery. After a few minutes a few minutes of on field treatment he lofted Lee's next ball high to Brad Hogg at backward square leg, who, after a moment's uncertainty, held the catch. Tendulkar's 153 in 205b (13x4, 3x 6) was an undoubted masterpiece, yet while it was not as many as I thought he needed to make to give his team the whip hand, he was primarily responsible for putting it in a reasonable position, and one which could be augmented to perhaps 400 or so by some sensible tail end batting.

As it happened Anil Kumble and Harbhajan Singh added 107 for the eighth wicket with a combination of stout defence, hard hitting and some high quality stroke play. The Australian bowlers could not extract much life from the pitch. At times they compelled respect, at others they were wayward: at one stage Mitchell Johnson conceded 32 from 4 overs before recovering to bowl two consecutive maidens. The fielding didn't help either as the first day's butterfingers virus spread to other team members.

Harbhajan was eventually caught by Adam Gilchrist running to square leg to hold a miscued pull off Andrew Symonds (who, for some unexplained reason, didn't bowl yesterday) for 63 / 103b (7x4). R P Singh went for a duck but Ishant Sharma stayed with Kumble to make 14 not out of a 58 partnership for the last wicket which last long enough to require the tea break to be postponed for half an hour. The tea interval had to be taken at 9/525 with Kumble on 86, and no doubt thinking about a century.

That wasn't to be, as he added only one more run after the resumption before he was caught behind off Johnson, which put Gilchrist ahead of South Africa's Mark Boucher as the holder of the record for the most dismissals by a keeper in Tests. Kumble's 87 took him 205 balls to compile, and included 9 fours. He was dropped once, at short leg from the ball immediately following Tendulkar's dismissal, when he was 7 but after that showed, before he tired in the 34 degree heat, that in the later part of his Test career he can claim to be a genuine all rounder whose batting ability opposing teams should not underrate.

526 was a good score, not least because it didn't look likely for large parts of the Indian innings. It was the post-Tendulkar 8th and 10th wicket partnerships, of 107 and 58 respectively, which gave India the ascendancy over Australia.

By the close the play that ascendancy remained, though the manner in which Matthew Hayden and Phil Jaques added 62 without being parted (or really ever looking like being parted) suggested that they will be able to lead a good Australian response. Whether this will eventuate, and if it does whether it will be sufficient to gain a first innings lead, will be decided over the next day or so. The weather forecast is good from a cricketing point of view (30 deg+ with no rain expected ) and for the moment the wicket is still playing well but things can change direction, as some recent Adelaide Tests remind us, quite suddenly.

Scorecard.

Cricinfo Bulletin.

Tendulkar's class keeps India in game: Fourth Test Day 1

India 5/309 (S Tendulkar 124 no, V Sehwag 63, VVS Laxman 51) v Australia.

Test cricket returned to the Adelaide Oval today to what used to be its traditional place in the cricket calendar: around Australia Day.

A crowd of just under 20,000 turned up to watch an intriguing day's play which was shortened not, as seemed likely when it rained overnight and early this morning, by the weather but by the slow Australian over rate. Only 86 of the scheduled 90 overs were bowled in the six and a half hours which are nowadays allowed to complete a notional six hour day.

Both teams made changes. Australia's were predictable: Matthew Hayden, recovered from injury, for Chris Rogers and Brad Hogg for Shaun Tait. India raised some eyebrows by restoring Harbhajan Singh at the expense of Wasim Jaffer: the opening batting vacancy was filled not by Rahul Dravid but by Irfan Pathan, who looks like being the first test player for a long time to open both batting and bowling.

India won the toss and chose to bat in bright sunshine: the temperature hovered in the high 20s for most of the day and there was a breeze which varied from north-westerly to south-westerly.

Virender Sehwag got off to a cracking start, despite occasionally playing and missing: the photo on the left is of the second ball of the day's play. For the first 45 minutes or so the scoring rate kept pace with the clock, despite the loss of Pathan, who didn't look comfortable, at 34. Thereafter until lunch the Australian pace bowlers kept a pretty tight rein on the innings: Mitchell Johnson picked up his second wicket, Dravid caught in the slips, and at lunch the Australians would have been satisfied with 2/89 from 26 overs.

In the second session Sachin Tendulkar began to assert himself. Three fours in an over from Johnson, all along the ground and each to a different quarter of the oval looked ominous but then a couple of wickets (Sehwag caught at slip off Brett Lee for 63/90b and Saurav Ganguly lbw to Hogg for 7) fell leaving India a below par and, were it not for the presence of Tendulkar and VVS Laxman at the crease, precarious 4/156.

At tea the score had reached 187 from 53 overs without further loss. Both batsmen looked comfortable and often exceedingly so, against the Australian spin attack of Hogg and Michael Clarke. But Lee rose to the occasion and pegged both Tendulkar and Laxman back, even though they brought up their century partnership in 159 balls, and Tendulkar reached his century (see the photo on the right above) in 133 b (9x4, 3x6).

Lee should have had Laxman caught behind for 37 but Adam Gilchrist fluffed a straightforward catch to his right. Fortunately for Australia the lapse was not too costly as Gilchrist caught Laxman off a much simpler catch from Lee's bowling for 51.

5/282 still didn't look enough but Tendulkar remained in command, despite easing off a little in the overs before stumps; M S Dhoni supported him with a stubborn and uncharacteristically dour 6 no/ 54b. Australia should have had Dhoni but Hayden, in another senior player's moment, grassed a standard slip catch.

Australia took the second new ball in the last over. Oddly enough, given that today he had the lightest workload of the four frontline Australian bowlers, Stuart Clark was given first and, as it turned out even though he ran (yes, ran) back to his mark to try and make time for another over, the only over with it. So the day finished at 5/309 with only three innings of any size, and a substantial number - 31 - of "sundries", as the classic Adelaide Oval scoreboard calls extras.

Lee, who bowled 22 overs, and Johnson, who bowled 25, were the backbone of the attack.

I've heard some commentators award the day to India. I wouldn't go that far but will sit on the fence for now. Before the start of play I thought that India needed to score at least 450 to be competitive. If they are to do so Tendulkar will need to continue in today's vein of watchful defence mixed with occasional aggression and receive some support from the tail.

What everyone who was at the ground today will agree is that Tendulkar's innings was memorable. What those who attend tomorrow (and there should be more than today) will hope is that he adds to his total and demonstrates more of the masterly strokeplay we were privileged to see today. Even if he doesn't do so there should be plenty of other things to sustain the interest of cricket followers.


Scorecard.

Cricinfo Bulletin.

PS A word of praise for Umpire Bowden who today showed considerable restraint in his on field demeanour. He signalled three sixes without the ostentatious waving of arms and legs we've come to associate with him, though you could see vestiges of his repressed flamboyance in some of his signals for four and leg byes. I'm happy to allow him those signs of individuality.